[2024] UKUT 375 (LC)

I see this as a rather less complicated issue.

The starting point is the FTT’s procedural rules, the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Rule 3 describes the FTT’s overriding objective, which is to deal with cases fairly and justly. That includes dealing with a case in in a way which is proportionate to the importance of the case, the complexity of the issues, the anticipated costs, and the parties’ resources (rule 3(2)(a)). It also includes avoiding unnecessary formality and seeking flexibility in the proceedings (rule 3(2)(b)).

The FTT has broad case management powers, which are described in detail in rule 6(3), but whose general effect is specified in rule 6(1), namely, that subject to the provisions of the Tribunals, Courts and Enforcement Act 2007, or any other enactment, the FTT may regulate its own procedure. In doing so it must give effect to the overriding objective.

Amongst the specific examples of case management powers listed in rule 6(3)(b) is the power to consolidate two or more sets of proceedings raising common issues or hear them together.

Also of relevance is rule 18, which is concerned with disclosure, evidence and submissions. In particular, the FTT may admit evidence whether or not it would be admissible in a civil trial (rule 18(6)(a)).

When it gave directions for the hearing of the 40 or more applications which had not been resolved by agreement, the FTT listed them all for hearing at the same time. It did not say so in terms, but it was obvious from the directions it gave that it intended to hear the applications together. Thus, it directed the preparation of a single bundle of documents for the use of the parties containing all of the applications and the documents filed in support, one copy of which was to be delivered to each resident. Without saying so, the FTT had used its power under rule 6(3)(b) to hear two or more sets of proceedings which raise the same issue together.

The appellant was not in any doubt that that was what the FTT had done. In correspondence before the hearing it had requested a direction that any resident who did not reply to the application would be deemed to agree to the proposed increase, but this was refused. Mr Mullin then made submissions to the FTT in writing that the applications were self-contained and related to individual contractual agreements between the park owner and individual residents. They must therefore each be determined based on the arguments and evidence put forward in the individual applications. He suggested that the FTT would be taking sides (‘descending into the arena’) if it took account of evidence in one case when it determined the outcome of a case where there had been no evidence.

It follows that the FTT’s approach, taking account of the evidence and submissions of Mr Clifton presented on behalf of the residents whom he represented when it determined the applications made in respect of residents whom he did not represent, involved no unfairness to the appellant. Mr Mullin was able to ask any questions he wished of Mr Clifton, respond to his arguments and present his own arguments in support of the pitch fee applications. There is therefore considerable artificiality and technicality in the submissions on this appeal. The appellant’s case is not based on alleged unfairness but on the suggestion that by taking account of the evidence it had heard the FTT was being partisan and adopting an impermissible inquisitorial approach.

In support of that submission Mr Mullin referred to a decision of this Tribunal (HHJ Gerald) in Fairman v Cinnamon (Plantation Wharf) Ltd. [2018] UKUT 421 (LC) which was concerned with a dispute over the apportionment of service charges. He plucked part of paragraph [63] of the Tribunal’s decision, to the effect that the FTT “is not an inquisitorial tribunal but makes its decision based upon the issues, arguments and evidence before it.” But he omitted the next sentence: “[I]t no doubt could of its own volition make inquiries and raise issues and call for evidence not ventilated by either party”. What is important is that the parties hear the evidence on which the FTT bases its decision and have the opportunity to respond to it. In this case the appellant clearly had that opportunity.

In any event, the FTT did not adopt an inquisitorial approach, it made use of the evidence it heard, which dealt with matters of equal relevance to the pitch fees of participating residents and those of non-participants. For the FTT to have determined the applications in respect of pitches whose occupants had not responded to the applications as if it was ignorant of what it had heard during the hearing and seen on its inspection would not have been consistent with its overriding objective of dealing with cases fairly and justly. It would have been inflexible and unnecessarily formalistic. It would have prevented the panel from carrying out their function of determining whether it was reasonable for the pitch fees to be increased and by how much.

I should add, in response to one submission made by Mr Mullin that what the FTT observed during its inspection was itself evidence and required no elaboration or exposition by a witness. There is no logic or sense in the proposition that a description or photograph of the Park showing the A1 trunk road through the gap left where the appellant had chopped down boundary trees rather than have the expense of maintaining them, would have been admissible in evidence, but that the same view observed by the panel in person could not properly be taken into account. If there is some rule of civil litigation to that effect Mr Mullin did not refer to it; if such a rule exists, it does not apply in the FTT by reason of rule 18(6)(a) of the FTT’s Rules.

For these reasons I answer the second question raised by the appeal in the affirmative. The FTT was entitled to take account of the evidence it heard and saw during the hearing when determining the pitch fees of residents who did not participate in the proceedings.

The appeal is therefore dismissed.