[2024] UKUT 00300 (LC)

As this appeal is concerned with procedure in the FTT it is convenient to begin by identifying the relevant procedural rules, which are rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the FTT Rules), read together with the overriding objective of the FTT Rules which is found in rule 3.

Rule 8(2) provides that if a party in tribunal proceedings fails to comply with a requirement of the FTT Rules, or a practice direction or direction, the FTT “may take such action as the Tribunal considers just”. A non-exhaustive list of responses is then listed, including waiving the requirement, requiring that it be remedied, striking out a party’s case, or “barring or restricting a party’s participation in the proceedings” (rule 8(2)(e)).

The FTT has power under rule 9 to strike out proceedings including where an applicant has failed to comply with a direction which included a warning that non-compliance might have that consequence, or has failed to cooperate with the FTT “such that the Tribunal cannot deal with the proceedings fairly and justly” (rule 9(3)(a) and (b)). If proceedings are struck out an applicant has the right to apply under rule 9(5) for the case to be reinstated.

Any decision by the FTT to strike out proceedings or to reinstate engages rule 3(3) of the FTT Rules, which requires the FTT to give effect to its overriding objective whenever it exercises any power conferred by the Rules.

As rule 3(1) explains, the overriding objective is to enable the FTT “to deal with cases fairly and justly”. What it means to deal with a case fairly and justly is amplified by rule 3(2):

“Dealing with a case fairly and justly includes –

(a)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;

(b)

avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)

using any special expertise of the Tribunal effectively; and

(e)

avoiding delay, so far as compatible with the proper consideration of the issues.”

Since the decision of the Supreme Court in BPP Holdings v Commissioners for HM Revenue and Customs [2017] UKSC 55, the approach to compliance with procedural rules and directions in tribunals has become more closely aligned with the stricter approach now adopted by the civil courts. But it is important to recognise that tribunal procedure rules, and specifically the FTT Rules, are not a carbon copy of the Civil Procedure Rules. In particular the overriding objectives identified in the two sets of rules are not identical and contain differences of emphasis and nuance which reflect the different characteristics of dispute resolution in courts and tribunals. Needless to say, the rules which govern the work of the FTT are its own FTT Rules, and not the Civil Procedure Rules. I will return to this point later.