[2024] UKUT 54 (LC)

For the reasons I have given the FTT was wrong to strike out the appellants’ 2020 application, and its decision must be set aside and remitted to a differently constituted panel for case management and determination. In the circumstances of this case it would not be fair to the appellants for the application to continue to be managed or determined by the same panel as has already struck the application out.

In considering what directions are required for the future conduct of the proceedings, the FTT should have regard to two of its procedural rules in particular.

First, in the highly unusual circumstances of these proceedings, the FTT should draw the appellants’ attention to its power under rule 13(1)(b) to make an order in respect of costs if it is satisfied that a party has behaved unreasonably in bringing or conducting proceedings. The appellants have not yet been directed to file a statement of case, so it is not known which aspects of the service charges for 2015 to 2018, or 2018 to 2020, they are concerned about. The FTT’s decision in the 2018 application should be provided to them, and they should bear its contents in mind when preparing their own case. If the answers to their questions are already apparent from the earlier decision, and if the conclusions reached by the FTT when it decides the 2020 application are not materially different, then those matters may be taken into account in determining whether it was reasonable of the appellants to bring or continue the 2020 application at least so far as 2015 to 2018 are concerned. In other words, Mr Connell and Ms Lynn should appreciate that they risk being liable for some or all of the respondents’ costs of the proceedings in relation to the years 2015 to 2018 if the outcome of their application is not materially different from the outcome of Mr Fernie’s 2018 application. Fairness to them requires that that risk should be spelled out clearly, and they should be given the opportunity to consider whether they wish to withdraw that part of their application that relates to the years 2015 to 2018.

Secondly, rule 14 is concerned with representation. A party is entitled to appoint a representative to represent them in tribunal proceedings but notice of the name and address of that representative must be given to the tribunal and to the other parties (rules 14(1)-(2)). It is important that representatives be properly identified because the tribunal will then communicate with them and not with their appointing party, and because a representative who acts negligently or improperly may be made the subject of an order under section 29(4), Tribunals, Courts and Enforcement Act 2007 for the payment of wasted costs. It should be noted, however, that a party has no automatic right to be represented by a person of their choosing at a hearing; rule 6(1) allows the FTT to regulate its own procedure and rule 14(5) allows someone who is not a party to act as a representative at a hearing only with the permission of the FTT. If previous experience causes the FTT to considers that a particular individual is unsuitable to act as a representative, it should indicate at an early stage that they will not be permitted to participate in the hearing (other than as an observer). In this appeal I directed that neither Darren nor Joshua Fernie would be permitted to represent the appellants at the hearing. Given the previous costs orders made against the Fernies because of their conduct of the 2018 application, the FTT should consider whether a similar prohibition should also apply to the 2020 application.