Parks and interpretation – Wyldecrest Parks Management Ltd [2024] UKUT 355 (LC)

It’s time to unwrap Rule 7(6) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (‘the Tribunal Rules’): the Upper Tribunal (‘UT’) has held in Wyldecrest Parks Management Ltd [2024] UKUT 355 (LC) that the First-tier Tribunal (‘FTT’) is not entitled under Rule 7(6) to require one party to serve the Tribunal’s directions on another, but must do so itself.

Background

Wyldecrest Parks Management applied to the FTT for a review of pitch fees under the Mobile Homes Act 1983 in respect of thirteen occupiers of a property known as Berrynabor Park, Ilfracombe, EX34. On 24 September 2024, the FTT ordered that “[by] 30 September 2024, the Applicant shall send a copy of these Directions and a copy of the Tribunal’s Statement of Rules and Procedure to each of the Respondents. The Applicant shall confirm to the Tribunal that they have served these documents by 2 October 2024. In default of compliance the application shall be struck out without any further notice being given.”

Wyldecrest requested permission to appeal on the basis that the FTT could not require it to serve the directions on the respondent without “good reason”, pursuant to Rule 7(6).

The Tribunal Rules

There are three relevant rules to consider.

• Rule 6(3)(d), which enables the FTT to “permit or require a party or another person to provide or produce documents, information or submissions to […] a party…”.
• Rule 7(6), which requires that “unless the Tribunal considers that there is a good reason not to do so, the Tribunal must send written notice of any direction made by the Tribunal to every party and to any other person affected by the direction.”
• Rule 16(2), which reads: “The Tribunal may provide any document (including any notice or summons or other information) under these Rules by – (a) itself sending or delivering the document; or (b) requiring a party to do so.”

At first glance, the effect Rules 6(3)(d), 7(6) and 16(2) seem to permit the FTT to require a party to provide any specified documents to another party where there is “a good reason” for the Tribunal to not do so itself. That was, after all, the conclusion reached by both a legal officer of the FTT, who made the direction in question, and the FTT.

The FTT Decision

It is worth noting that decisions of legal officers are not judicial decisions which are susceptible to appeal; instead, pursuant to Rule 5(3) of the FTT Rules, a party can within 14 days apply in writing to the FTT for such a decision to be “considered afresh” by a judge.

Nevertheless, this procedural nicety was not spotted by the FTT. On 11 October 2024 it refused Wyldecrest’s permission to appeal. Relying upon Hyslop v 38/41 Residents Co Ltd [2017] UKUT 398 (LC), the FTT found that it could require a party to serve directions on another. The FTT considered that the effect of Rule 7(6) was that “unless there is a good reason, [the FTT is] entitled to direct that it is a party who will send such a direction out.”

Wyldecrest subsequently applied to the UT for permission to appeal. For the reasons identified above, the UT treated the FTT’s judge’s order refusing permission to appeal as a fresh consideration and a re-making of the legal officer’s order, pursuant to Rule 5(3).

The appeal was determined under the Tribunal’s written representations procedure. There was no respondent as the order in question was made before the proposed respondents had been served.

The UT Decision

The UT had to decide whether the rules set out above enabled the FTT to require an applicant to send its directions to the respondent, instead of sending them itself.

Judge Cooke began by considering Hyslop, the case relied upon by the FTT. In that case, Deputy President Rodger KC considered that references in Rule 29 to “providing” a copy of the notice of application invites reference to Rule 16(2), and that “the rules do indeed enable the FTT to require the applicant to send the notice of application to the respondent”. For clarity, Rule 29 reads: “(1) When the Tribunal receives a notice of application in accordance with rule 26(1) or a statement of case in accordance with rule 28(4), the Tribunal must provide a copy of the application and any accompanying documents to the respondent.”

Nevertheless, Deputy President Rodger KC considered that an FTT’s decision was to be distinguished from a notice of application. The FTT’s obligation to provide a decision to each party at the conclusion of proceedings therefore could not be satisfied by providing those documents to one party and directing them to forward them on to the other party. Rule 16(2) was not to be interpreted so widely.

Accordingly, Judge Cooke considered that Rule 7(6) did not enable the FTT to require an applicant to send directions to the respondent. There were several reasons why the FTT was required to send out its own directions:

• Firstly, directions require actions from parties. If they are delivered by another party, there is a risk of a dispute about whether and when they were delivered.
• Secondly, there was a risk of compromising the perception of the FTT’s independence were it to delegate its service function to one of the parties.
• Thirdly, directions, like decisions, can be appealed. Applications for permission to appeal must be made within 28 days “after the latest of the dates that the Tribunal sends [the relevant documents] to the person making the application” (Rule 52(10)). If another party were to provide directions or decisions, Rule 52(10) could not apply and the prospective appellant’s time for appealing would never start to run.
• Furthermore, if Rules 7(6) or 16(2) had been intended to enable the FTT to delegate the service of directions to a party, that would have been made “crystal clear”.
• Finally, the “good reason” requirement in Rule 7(6) is a reference to the Tribunal’s requirement to send directions at all, not a condition as to whether a Tribunal can require a party to send its directions to another.

Conclusion

It looks like the FTT has been put on the naughty list. This decision serves as a reminder that the Tribunals are creatures of statute and only get the powers expressly provided to them under the relevant Tribunal Rules.

Article by David Lipson