Behjat v Crescent Trustees Ltd (2022) UKUT 115 (LC) UTLC

We’ve previously seen some messes happen where the First Tier Tribunal judges purport to exercise their jurisdiction as county court judges, for example here. This, unfortunately, is another instance of ‘double hatting’ going wrong.

Crescent Trustees had brought a county court money claim for arrears of service charges. The leaseholder, Mr Behjat, defended, challenging the reasonableness and payability of the service charges. The county court District Judge made an order transferring the matter to the First Tier Tribunal in the following terms:

“1. The claim is transferred to the First Tier Tribunal for a determination as to the recoverability and payability of the alleged arrears of £7,226.22 for reserve fund and remote charge.

2. Costs reserved.”

So far, so good. But then the first directions order made by an FTT judge, on the papers, was (so far as relevant):

“These proceedings will be administered by the Tribunal. The Judge who eventually hears the case will deal with all the issues in the case, including interest and costs, at the same time as the tribunal decides the payability of the Service and Administration charges and the Judge (sitting alone as a Judge of the County Court) (DJ) will make all necessary County Court orders.” (Emphasis in original.)

Neither the Claim Form or the Particulars appear to contain a proper and/or properly completed Statement of Truth.

By no later than 6 August 2021, the Claimant must file (with the Tribunal) and serve an amended Claim Form and Particulars containing a properly completed Statement of Truth complying with the Civil Procedure Rules.”

And concluded

“If the Applicant fails to comply with these directions the tribunal/court may strike out all or part of their case pursuant to rule 9(3)(a) of the Tribunal Procedure (First- tier Tribunal) (Property Chamber) Rules 2013 (“the 2013 Rules”) or the Civil Procedure Rules.

If the Respondent fails to comply with these directions the tribunal/Court may bar them from taking any further part in all or part of these proceedings and may determine all issues against it pursuant to rules 9(7) and (8) of the 2013 Rules or the Civil Procedure Rules.”

The applicant did not file an amended claim form and particulars. The respondent wrote to the Tribunal requesting the claim be struck out ‘under rule 9(3)(a)’. By an order “headed as an order of the FTT, and stated in its sub- headings to be made by a “Tribunal Judge””, the Tribunal Judge stated

“1. Following the Directions sent by the tribunal case officer to you dated 7 July 2021 this is a formal Decision from the Tribunal.

2. Your applicant is struck out on the following ground pursuant to rule 9(a) of The Tribunal (Procedure) (First-tier) (Property Chamber) Rules 2013, namely that:

you have failed comply with the tribunal’s directions. Direction 7 of the tribunal’s directions dated 7 July 2021 required you to file no later than 6 August 2021, an amended Claim form and Particulars containing a properly completed Statement of Truth complying with the Civil Procedure Rules.

3. As thus matter has been transferred from the County Court the tribunal invites the parties to provide written representations with 14 days of the date of this Decision as to the form of the County Court Order that should be made with the reasons why.”

The order did not contain and was not accompanied by any information about the procedure for appeal.

The landlord made an application for relief from sanctions, which was refused, but then two days later, a letter from the FTT was sent to the parties reinstating the original directions, with new dates, and stating

“This matter has been reviewed by (a Deputy Regional Judge). Please note that the Judge has set aside all those decisions and orders made after directions were given on 7 July.”

The letter went on to say that the intervening orders were a nullity, because

the tenant’s application to strike out the landlord’s case should have been made on Form N244 pursuant to CPR 23 and should have been accompanied by the relevant fee;
and that the judge who made the order of 16 August 2021 was sitting as a judge in the FTT and made her order under the FTT’s rules, and therefore had no authority to strike out the County Court claim.

Accordingly there was no need for the landlord to have applied to reinstate the claim and there was no valid order for the FTT to consider setting aside on 28 September 2021.

The tenant appealed this decision.

The Upper Tribunal first decided that this letter was in effect an order, and so could be appealed.

The tenant’s argument that the order striking out the claim did not strike out the county court clam but only “the landlord’s application for recoverability and payability” had not been raised before. But in any event, it was wrong. The only application from the landlord was to the county court for recovery of the service charges. The default supposedly being punished was the failure to file and serve revised pleadings. The clear intention of the supposed ‘strike out’ order was to end the county court claim.

It was quite right that a judge sitting as a Tribunal judge – as was stated on the strike out order – had no jurisdiction to strike out the county court proceedings. Whether that by itself made the order void was not a straightforward question, but did not need to be answered, as the subsequent order had set it aside.

However, the order setting aside the earlier orders could not stand. The FTT’s power of review only arose were there was an application for permission to appeal, and while one of the conditions under Rule 51, by which the FTT could set aside an order disposing of proceedings, was met (procedural irregularity) the letter/order gave no explanation of how and under what power the earlier orders were set aside. The reasoning was inadequeate. Further, the parties should have been invited to make representations before such a decision.

The appeal allowed to this extent, but this left the position that the previous orders that were made without jurisdiction stood, but the landlord would be entitled to apply to have them set aside. Instead of this, the UT decided to remake the decision.

In exercise of the power conferred by rule 51 of the FTT rules I set aside the decision of 16 August 2021 because of the procedural irregularity that it was made without jurisdiction, by an FTT judge who purported in that capacity to strike out a case in the county court in exercise of her powers under the FTT rules. It is of course in the interests of justice to do so, because justice is not served by a void order that has no effect.

The reasonableness and payability of the service charges can now be determined by the FTT and it will need to give directions for the tenant to set out its case, for the landlord to respond, and for disclosure, witness statements and a hearing in the usual way.

The action in the county court also needs to be progressed. In view of the deployment decision made in the directions of 7 July 2021, a judge of the FTT may now sit as a county court judge and make a fresh direction for the landlord to file and serve a proper pleading with the county court sitting at the FTT’s offices at Alfred Place. The judge who eventually sits as an FTT judge to determine the payability of service charges will also sit as a county court judge to determine the remaining county court matters.

The Upper Tribunal goes on to note that none of this should have happened in view of the guidance given in Avon Ground Rents Ltd v Child (2018) UKUT 204 (LC) (our note). The distinction in jurisdiction should be clear and different procedural rule applied to each jurisdiction.

But there were two further difficulties here.

The first is that the deployment decision in this case, that a single judge would determine the FTT matter and the remaining issues in the county court, was made in the order of 7 July 2021. That decision should have emanated from the county court. It may be that it did; perhaps arrangements have been made with the DCJ at Edmonton that where service charge matters are transferred to the FTT under section 176A of the 2002 Act the FTT judge who gives directions in the FTT may sit as a county court judge to exercise the power to make the deployment decision, so that an FTT judge will also sit as a county court judge in the county court proceedings. It is not possible to tell from the order of 7 July 2021 whether that is the case. I am aware that this is a standard form order which the Tribunal has seen in a number of service charge appeals. For the future it would be helpful if the source of the authority to make the deployment decision were set out in the order in which it is made.

The second is that in his refusal of permission to appeal his decision of 30 September 2021 the FTT judge said this, in response to the tenant’s argument that the order of 7 July 2021 said that the FTT would deal with all aspects of the case (see paragraph 34(c) above):

“The directions given did not state that “the Tribunal will deal with all aspects of the case”. The directions stated; “These proceedings will be administered by the Tribunal. The Judge who eventually hears the case will deal with all issues in the case ….” The directions make it clear that the administration of the case is dealt with by the Tribunal, that that the Tribunal (i.e. the FTT) will deal with all aspects of the case, It is only at the final hearing that the Tribunal Judge will sit both as part of the Tribunal and separately, when dealing with county court matters, as a judge of the County Court.”

I do not understand what is being said here. Clearly the FTT could not make orders in the county court proceedings, and this particular ground of appeal was misconceived – the misconception rests on the idea that the county court proceedings had themselves been transferred to the FTT which of course is not right, but has been encouraged by the form of the directions of 7 July 2021 and by the instruction for example to file pleadings “with the tribunal” (see paragraph 20 above). But the idea that decisions can only be taken in the county court proceedings at the final hearing is puzzling. The directions of 7 July 2021 appear to make a deployment decision that is intended to take effect at once and to last for the remainder of the life of the county court case. That is why those directions themselves include a direction to the parties to file county court pleadings, and end with a threat of strike- out under the CPR if the directions are not complied with. If it was the judge’s intention to make a deployment decision that had effect only for the final hearing then that should have been made clear. But that was manifestly not the effect of the deployment decision.

Once it was established that a Tribunal judge would also sit as a county court judge, there should be a direction to the parties about what would in effect be county court proceedings (and so require CPR compliant applications etc) and what would be Tribunal proceedings.

That means that at any point in the proceedings from thenceforth a judge faced with an application in the case must ascertain whether the application is to the court or the tribunal, decide as a consequence in what capacity he or she is going to sit to determine it, and make clear in the ensuing decision in what capacity the decision is made.

Comment

Oh dear.

First – and as a matter of both practicality and clarity, it really needs to be established what the position is when a county court money claim for unpaid service charges is transferred to the FTT. The order doing so in this case is a very common form of order, but I can’t see that it could be taken to transfer the county court jurisdiction to the FTT judge sitting as a county court judge. It appears, though is not certain, that in this case the first FTT judge (sitting a county court judge) had, in effect, unilaterally appropriated the whole claim from Edmonton County Court. That can’t be right.

Second, this just makes it clear that unless and util there is a single set of procedural rules, ‘double hatting’ presents serious issues for parties to proceedings. How are people – largely acting on person – to understand which elements of the case require civil procedure rule compliance (applications in form N244 etc) and which are subject to Tribunal procedural rules? Or whether appealing an order would require an appeal to a circuit judge, or to the Upper Tribunal via the FTT’s review mechanism, or both?