[2024] UKUT 358 (LC)

In Page, at[29], Lewison LJ identified the question to be answered when deciding whether a civil claim has been brought before the expiry of a relevant limitation period:

“When an action is "brought" for the purpose of the Limitation Act 1980 is, in my judgment, a question of construction of the Act. It is not a question of construction of the CPR, let alone a question of construction of a Practice Direction. The CPR (and perhaps the Practice Direction) may inform the construction, but the question remains: what does the Act mean?”

What does the Act mean? In this case the Act is the 2016 Act and the requirement to be interpreted is section 41(2): the offence must have been committed within 12 months ending with the date the application was made. The question is therefore about the date an application was made. Was it 5 June when the application notice was filed on-line, or 5 July when the fee was paid?

Although Page demonstrates that the relevant question is about what section 41(2) means when it refers to a claim being “made”, Page also shows that the answer to that question may be found in the relevant procedural rules. The FTT Rules cannot change the meaning of the statute, or extend a statutory time limit, but if the meaning of the statute is that, in order to make an application or bring a claim, a litigant must do everything required by the applicable rules, then those rules will be very relevant in identifying the necessary steps.

The CPR are not applicable to tribunal proceedings and no assistance on what is required to make a claim in the FTT will be found in the examining them. Although I was referred to a number of CPR authorities on the filing of documents and the issuing of proceedings at court, I do not think it is necessary to analyse them.

The only case of which I am aware which considers what is involved in making a claim in the FTT is Salehabady v Eyre Estates [2017] UKUT 60 (LC) in which this Tribunal (Judge Behrens QC) had to consider the requirement in section 48(2) of the Leasehold Reform Housing and Urban Development Act 1993 that an application to determine the disputed terms of acquisition on a collective enfranchisement must be “made not later than the end of the period of six months beginning with” the date on which a counter-notice was given. The application was said to have been posted within the period of six months but had been delayed and had not arrived by the time the six month period expired. The Tribunal ruled that the application was valid, at paragraph [20]:

“I agree that the word “made” in s 48(2) looks to a unilateral act by the applicant. In my view the applicant makes the application by starting the proceedings. I also agree that rule 26(1) provides two methods for starting proceedings – by sending or delivering a notice of application to the FTT. It follows in my view that either of those acts is effective to start the proceedings.”

The decision in Salehabady has been questioned (see Hague: Leasehold Enfranchisement, (2021), 7th edition, para. 26-13) and the outcome is not of direct relevance to this appeal, but it illustrates the relevance of the Rules to the ascertainment of the requirements of a particular statute. It also provides support for the adoption of the same approach as was taken by Eveleigh LJ in Aly v Aly i.e. that starting proceedings is a unilateral act by the applicant which does not depend on steps taken by someone else (whether the postal service or tribunal staff).

If section 41(2) means that within 12 months of the commission of the relevant housing offence a claim must be brought in the manner required by the FTT Rules, what do the Rules require? The answer to that question is to be found in rule 26, read together with the FTT’s overriding objective described in rule 3.

Starting with rule 3, the FTT’s overriding objective of dealing with cases fairly and justly is stated in sub-paragraph (1) and then illustrated in sub-paragraph (2) with a non-exhaustive list of what it means to deal with a case fairly and justly. The list includes avoiding unnecessary formality and seeking flexibility in the proceedings (rule 3(2)(b)). The FTT is required to give effect to its overriding objective when it interprets its own rules (rule 3(3)(b)).

Rule 26 begins with a bald statement that an applicant must start proceedings before the FTT by sending or delivering a notice of application. The commencement of proceedings does not depend on the tribunal itself processing or issuing the claim. The basic rule that what is required is a notice of application is followed by additional requirements, most of which are in rule 26(2) which deals with the content of an application and the information which it should contain. Rules 26(4) and (5) then identify things which must accompany the application. Thus, if the application is an appeal it must be accompanied by a copy of the decision appealed against (rule 26(4)); any fee payable must be provided with the notice of application (rule 26(5)).

Each of these requirements must be considered in the light of rule 8(1) of the FTT Rules, which provides that “an irregularity resulting from a failure to comply with any provision of these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.” Rule 8(2) then explains that if a party has failed to comply with such a requirement the FTT may take such action as it considers just, which may include waiving the requirement, or requiring the failure to be remedied.

There is no issue in this appeal about the sufficiency of the information supplied with the application under section 41(2), so it is not necessary to consider whether there is a minimum compliance threshold below which a document could not sensibly be described as a notice of application. The only default in this case was in the failure to pay the fee within time.

As a matter of interpretation of rule 26(1), proceedings are started by sending or delivering a notice of application. The notice of application is a document, not a payment, and the fee itself is not part of that document. There is a separate requirement, imposed by rule 26(5), that the fee must be provided with the notice of application. In terms of the structure and meaning of the rule that requirement further confirms that the application and the fee are different things: the fee is something to be provided with the application, it is not part of the application. There is therefore no reason to elide what the maker of the Rules has kept separate or to interpret the rule as if it said that an applicant must start proceedings before the FTT by sending or delivering a notice of application and providing any fee payable.

On that interpretation of rule 26, proceedings are started by sending or delivering a notice of application, whether or not the requisite fee is paid at the same time.

That interpretation is in accordance with the FTT’s overriding objective. To read the rules as if the making of an effective application was conditional on payment of the fee would be to adopt an unnecessarily formal and inflexible approach, contrary to the encouragement given by rule 3(2)(b). By creating a procedural trap it would impede the FTT’s task of dealing with cases fairly and justly (notwithstanding the important contribution which time limits generally make to the administration of justice).

That interpretation is also consistent with rule 8 which treats non-compliance with the FTT’s Rules and practice directions as an “irregularity” rather than a fatal flaw going to the validity of the step taken. Rule 8(1) is expressed in very wide terms (wider than the comparable civil procedure rule, CPR 3.10) and expressly preserves the effectiveness not only of individual steps taken in the proceedings but of the proceedings as a whole (unlike CPR 3.10, at least in its express terms). Rule 8(1) is wide enough to enable a notice of application which does not comply with the requirements of rule 26 nevertheless to be an effective means of commencing proceedings. The power given to the FTT to waive compliance with a particular requirement, or to require that it be complied with later than the rule itself may stipulate, is also consistent with an approach which does not treat compliance as essential to effectiveness.

This view of the effect of rule 26 is in accordance with rule 11 which explains the consequences of a failure to pay a fee. Under rule 11(1) it is the FTT which “must not proceed further with the case until the fee is paid”. If, as rule 26(1) indicates, proceedings are commenced by the unilateral act of the applicant in sending or delivering the notice of application, the bar in rule 11(1) on the FTT proceeding further until payment is received does not cast doubt on the validity of the proceedings which have already commenced. The direction in rule 11(2) that where a fee remains unpaid for 14 days after becoming payable, “the case, if not already started, must not be started” again refers to the taking of steps by the FTT or its staff. I also agree with Mr McGowan that rule 11(2) contemplates that a case may already have been started (“if not already started”) notwithstanding non-payment of the necessary fee.

These points tend to confirm that rule 26 means that proceedings are started by sending or delivering a notice of application, whether or not the requisite fee is paid at the same time.

I have reached this conclusion without reference to the FTT’s guidance or the notes in its standard forms. The status of the original guidance of April 2020 is unclear. Consistently with the needs of the moment, it explained how the FTT intended to proceed without dwelling on the authority which it considered entitled it to do so. The guidance was not described as a practice direction and appears mostly to reflect the tribunal’s administrative rather than judicial practice. Such a document cannot change the meaning of the FTT’s Rules nor alter a statutory time limit. Nor can guidance on printed forms.

But, as one would expect, there is no inconsistency between the guidance and forms and the FTT Rules. As I have explained, and putting Salehabady to one side, the date on which a notice of application is lodged with the FTT is the relevant date for the purpose of limitation. It might be inferred from the statement in the guidance that the date of lodging “would be regarded as” the date of receipt for the purpose of any statutory time limit that the efficacy of making an application without at the same time paying the fee depended on some dispensation from compliance with a stricter requirement, but that would be to read too much into a document intended to convey important information and to reassure. In any event, I do not read the rule in that way.

The practice of allowing 14 days grace for payment is also based on the rules, and specifically rule 11(2) and (3). The deemed withdrawal effected by rule 11(3) depends on the FTT first having provided a written notification that the fee has not been paid, but that is consistent with a practice of sending the details necessary to enable the fee to be paid on-line and requiring that the payment must be made within 14 days. The FTT’s standard letter requiring payment which was sent to the respondents on 22 June 2023 implicitly notified them that payment had not yet been made. If payment was not then made within the stipulated 14 days, the application would have been deemed to have been withdrawn without any further judicial determination. The guidance and forms are therefore quite consistent with the Rules themselves and involve no relaxation of them.

The appeal is accordingly dismissed.