[2025] UKUT 157 (LC)

The FTT’s raising of the Additional Items on its own initiative

It will be clear from the account we have set out above that none of the Additional Items (see paragraphs 32 and 33 above) was specified as a defect in the respondents’ application to the FTT. Their pleaded case went a little wider by introducing the possibility of a requirement to replace fire doors (paragraph 18 above), but the FTT accepted that the doors were not relevant defects and they were not among the Additional Items. Most (but as we shall see later not all) of the Additional Items were raised by the FTT at the hearing in March 2024, and in its decision of 3 July 2024 the FTT discussed them under the heading “The Tribunal’s issues”, as distinct from “The Leaseholders’ issues”. As the FTT itself acknowledged (paragraph 54 of its decision) the remediation order required MRL to “undertake considerably more work than it envisaged”.

Consideration of the circumstances in which the FTT may raise issues on its own initiative, when they do not form part of a party’s case, takes us again to the ground trodden by the President in Sovereign Network (paragraph 3 above). His discussion of the authorities was comprehensive, and there is no point in our reproducing it and no need for us to present the authorities in the same detail. We commend Sovereign Network to readers who seek a full account of the law. What we aim to do here is to present a summary, based on Mr Selby KC’s excellent skeleton argument, which FTT judges and members may find useful when deciding, before or during a hearing, whether they should raise a new point.

The law can be summarised in five propositions. First, the FTT can raise points that the parties have not raised. In Regent Management Limited v Jones [2010] UKUT 369 (LC) the Tribunal (HHJ Mole QC) said this in the context of service charge disputes, and with reference to the Leasehold Valuation Tribunal which is now the FTT:

“29.

The LVT is perfectly entitled, as an expert tribunal, to raise matters of its own volition. Indeed it is an honourable part of its function, given that part of the purpose of the legislation is to protect tenants from unreasonable charges and the tenants, who may not be experts, may have no more than a vague and unfocussed feeling that they have been charged too much.”

Second, and as an important qualification of that first principle, legal proceedings in England and Wales (with a few exceptions not relevant to this appeal) are adversarial, not inquisitorial; that means that it is for the parties to present their cases and for the tribunal (by which we mean the court or tribunal, whether a single judge or a panel) to decide between them. It is not for the tribunal to suggest, let alone to argue, a case for either party. To do so is to step out of its proper role and into the arena of dispute; it is unfair, because it involves taking sides. As the Tribunal (HHJ Nigel Gerald) said in Birmingham City Council v Keddie [2012] UKUT 323 (LC):

“17.

…It is the jurisdiction and function of the LVT to resolve issues which it is asked to resolve, provided they are within its statutory jurisdiction. It is not the function of the LVT to resolve issues which it has not been asked to resolve, in respect of which it will have no jurisdiction. Neither is it its function to embark upon its own inquisitorial process and identify issues for resolution which neither party has asked it to resolve, and neither does it have the jurisdiction to do so.

18.

[…]

19.

That said, there may of course be rare cases in which it is appropriate or necessary for the LVT to raise issues not expressly raised by the parties but which fall within the broad scope of the application in order to properly determine the issues expressly in dispute.”

Third, the authorities have identified three types of occasion when it will be appropriate for a tribunal to raise a new point:

Fourth, whether or not to raise a new point is a matter of discretion, and the decision to do so will not be interfered with on appeal unless the appeal court takes the view that the decision to raise the new point was one which no reasonable tribunal could have taken (see paragraph 147 of the President’s decision in \Sovereign Network).

Fifth, if the tribunal does raise a new point it must follow a fair procedure. That has been stressed repeatedly in the authorities. As the President put it in Sovereign Network at paragraph 195(4):

“In raising a new point the FTT should not descend into the arena or give the appearance of descending into the arena.  The role of the FTT is limited to raising the new point, assuming that it is appropriate to raise the point at all.  Thereafter, it is for the relevant party, to whose advantage the new point may be, to decide whether to pursue the new point.”

As the President explained, for the point to be pursued it must be pleaded, and the first question will be whether the relevant party can amend its statement of case in order to add the new point; the tribunal must hear from both parties as to whether that should be allowed. If it is allowed then it is for the party now taking the point to argue it and for the other party to respond to it; if evidence is required to prove it then both parties must be able to adduce evidence on the new point. An adjournment may be needed and case management directions will then be given.

In light of the law, Mr Selby KC framed his argument in a number of ways.

First, he argued that the FTT had no jurisdiction to make a remediation order in respect of the Additional Items because they were not specified in the leaseholders’ application. The FTT has jurisdiction to make a remediation order only on the making of an application (section 123(2) of the Buildings Safety Act) and, said Mr Selby KC, only in respect of defects specified in the application as required by the regulations and as invited by the layout of the application form.

We agree that the FTT has jurisdiction to make a remediation order only if an application has been made. We do not agree that the FTT can order the remediation of a relevant defect only if it was specified in the application. “Specified” in section 123 means “specified in the order”; we are not persuaded that any problem of jurisdiction arises where the FTT is asked by an applicant to make an order that goes rather wider than envisaged in the application. The extent of the application may well change once the parties have formally pleaded their cases (as the leaseholders’ case did here, in adding the fire doors when their filed their statement of case), or they may seek to amend their pleading later and may be permitted to do so. Either way, a defect not actually listed in the application form may become part of a party’s case, and the FTT may be persuaded by evidence to specify that defect in the remediation order after hearing both parties on the point. That is not what happened here; but our point is that the fact that a defect is not specified in an application does not mean that the FTT cannot make a remediation order in respect of it. It can, provided the correct procedure is followed.

Second, Mr Selby KC argued that the FTT had no jurisdiction to raise the Additional Items.

We agree that the FTT should not have raised them, although we would not put it the same way; jurisdiction is about the ability to decide things, and the question here is whether the FTT exceeded not its jurisdiction to decide but its discretion to raise a new point. The exercise of a discretion will rarely be appealable, unless the decision concerned was one that no reasonable tribunal could have made. That was the case here. We can explain that by reference to the third point in our summary of the law, at paragraph 41 above. The FTT’s concerns about the Additional Items were not points about jurisdiction, nor was the FTT under any statutory direction to raise them; the Building Safety Act 2022 does not require or enable the FTT to conduct a building safety audit, which is what it did here. Nor did the FTT raise the Additional Items in order to clarify the leaseholders’ case. Their case was perfectly clear. They relied upon the MAF report, with which MRL had no quarrel, and which not only set out what was wanted by way of remediation but also considered the Additional Items and concluded that they were not relevant defects and did not require remediation. The leaseholders’ case needed no clarification; and these were not items that no-one had thought of. The FTT’s decision discloses no good reason for its having raised the Additional Items and we conclude that it exceeded its discretion in doing so.

Moreover, having raised the Additional Items the procedure adopted by the FTT was unfair. We refer here to the fifth point in our summary, at paragraphs 43 and 44 above. The FTT did not invite the leaseholders to amend their pleadings or in any way to make a case about the Additional Items themselves. Instead the FTT became a party to the dispute. The issue about the Additional Items was between the FTT and MRL. We are told by the FTT in its refusal of permission to appeal that Mr Blomfield in his closing submissions expressed the wish for the FTT to resolve all the building safety matters at the building; but the new case was raised by, and argued by, the FTT without the leaseholders’ involvement. It required nothing from them; it gave directions for MRL to produce evidence but sought neither argument nor evidence from the leaseholders; at the adjourned hearing it questioned the authors of the BEFS report but the leaseholders did not until after the FTT had done so. It set out its decision about the Additional Items under the heading “The Tribunal’s issues”, thus making it explicit that these were not the leaseholders’ issues.

In light of the circumstances in which the FTT raised the Additional Items, and the procedure it adopted having done so, we take the view that its decision to require the remediation of the Additional Items was vitiated by a serious procedural irregularity and was a breach of natural justice, and we set it aside.