FTT applications – forewarned is forearmed

Procedural uncertainty, costs and the ‘emotional aspect’ mean that the decision to bring a case to the First-tier Tribunal is not one to be taken lightly. This was reinforced in a recent case, which began with a relatively minor question and escalated into a lengthy and expensive back-and-forth analysis of the Tribunal rules.

In this property management blog, Brady Solicitors talk you through some of the pitfalls to bear in mind before embarking on an FTT application.

1. Procedural uncertainty – highlighted by the Hyslop case

The first main point to note is that the FTT is not bound by its own decisions, only by those of the Upper Tribunal and the higher Courts.

In addition, the Tribunal Rules are often applied more flexibly than the Civil Procedure Rules used in the County Court, and are open to a broader range of interpretation.

This makes it difficult to predict the outcome of Tribunal proceedings with any certainty and, of course there is always the possibility that the FTT can make mistakes with its own rules, as in the Hyslop* case.

Amanda Gourlay, expert barrister of Tanfield Chambers, provides an excellent analysis of the case on her Law & Lease blog here.

In a nutshell, the FTT had asked the applicant (the freeholder) to send copies of the directions to the parties, which it did. The FTT also asked the freeholder to send the decision to the parties but Ms Hyslop didn’t receive it.

The key point here was that the FTT cannot ask a party to send a decision on its behalf; the decision must come from the FTT itself.

One can only assume that with 30 respondents to send the decision to, the FTT was perhaps not keen on the paperwork…

The upshot of the procedural error is that the Upper Tribunal decided that it would be best to have the decision re-heard, so back it went to the start, racking up cost, time and stress for all concerned.

The decision shows that even the FTT can make mistakes with its own rules, and highlights the uncertainty involved in FTT applications.

2. Costs in a no-cost forum

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The Tribunal rules mean that under normal circumstances parties cannot recover their costs from each other.

This is different to claims in the County Court, for example, where it is normal for the winner to pay the loser’s costs.

But this does not mean that the FTT is free.

There are fees that need to be paid, together with the cost of any legal advice which you receive to help with your case. The cost of this advice will vary depending on the type of application made.

Lease clauses sometimes allow freeholders or management companies to recover costs from leaseholders, though these can be limited by the Tribunal.

Even so, the FTT can still make an award under Rule 13 to order that a party pays another party’s costs where it feels a party has acted unreasonably.

All of the above means that FTT proceedings can be expensive, and far from the ‘no cost forum’ that it is often known as.

3. The emotional factor

In addition to the cost, the emotional turmoil and impact of an FTT application is often overlooked – especially at the outset of the process.

Even straightforward FTT applications can take months to conclude, and this can take its toll, particularly where there is a need to maintain a relationship and where an individual’s home is concerned.

When considering an application at the FTT, make sure you understand exactly what you are getting into – and invest in legal advice.

At Brady Solicitors we have supported hundreds of clients through successful Tribunal cases, guiding them seamlessly through the process. If you are facing a property management dispute, our expert property management solicitors will be able to advise you on the best route for a speedy and cost-effective resolution – and may be able to help you avoid the FTT entirely.

For expert advice on the Tribunal rules and for guidance through the FTT process, please contact Brady Solicitors.

*Iris Hyslop v 38/41 CHG Residents’ Co Ltd [2017] UKUT 0398 (LC)

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