Bringing property disputes under one roof

“Every court shall so exercise its jurisdiction in every cause or matter before it as to secure that…all matters in dispute between the parties are completely and finally determined and all multiplicity of legal proceedings with respect to any of those matters is avoided”

Section 49(2), Senior Courts Act 1981

Or, in other words, keep it simple! 

he simplification of legal process and speedier, more efficient access to justice for litigants is at the heart of legislative reform.  However, the interaction of principles of common law and equity in the development of our legal system has meant that, contrary to this intention, legal process can be complicated by certain cases having to be heard by Tribunals while others have to be dealt with in the Courts.  Frequently this means that the route to a legal remedy in property matters can appear long winded and complicated, not to mention expensive, as litigants are required to make separate applications and obtain determinations in more than one forum.

There is a clear jurisdictional divide in enfranchisement claims which often creates an unsatisfactory to-ing and fro-ing between the Court and the Tribunal, frustrating litigants and lawyers alike.  For example, while issues of entitlement are dealt with in the County Court, the First Tier Tribunal decides disputed terms of acquisition, including premiums.  Feasibly, in a disputed claim under the Leasehold Reform, Housing and Urban Development Act 1993, a nominee purchaser may need to simultaneously issue proceedings in the County Court to determine entitlement whilst also making an application to the Tribunal for a determination of the price and transfer terms in a case where the claim has been admitted without prejudice to points on validity.  Assuming success on entitlement in the County Court and once the Tribunal has then determined the price and transfer terms, they may then need to return to the County Court to prevent the claim from lapsing.  In cases where landlords are missing or unable to be identified, tenants must bring proceedings for dispensation of notices in the County Court before potentially having to go to the Tribunal in respect of disputed terms.  Litigants are often understandably confused at this separation of proceedings in the same dispute between different forums which can serve to prolong matters and increase costs.

Similarly disjointed processes apply in other areas including service charge disputes where dispensation of the consultation requirements under Section 20 of the Landlord and Tenant Act 1985 can only be dealt with by the Tribunal whereas questions of construction of the terms of the leases fall to the County Court.  In a bid to counter this unsatisfactory situation, the First-tier Tribunals and the County Courts are running a pilot scheme whereby each is able to deal with issues that were previously only within the jurisdiction of the other.  Under the scheme, the Courts and the Tribunal now have the power to transfer cases between themselves where appropriate and to retain cases which they would otherwise have had to transfer.

This jurisdictional streamlining clearly has case management advantages and logically, should result in significant savings both in terms of time and cost.  However, the obvious goal of the project is to establish whether the aim of resolving all elements of a dispute at one hearing, under one roof is workable on a practical level.  So far, the project has only been tested in certain types of property dispute and there are clearly hurdles to overcome such as choosing which procedural rules apply.  One of the key differences is in relation to costs – the County Court will usually award costs but the Tribunal only does so in extreme cases. Realistically, if the project proves that the concept of dual jurisdiction is workable, special rules will likely have to be developed before it can be rolled out.

So, while very much a “watch this space”, the progress of the scheme and the positive feedback received is to be welcomed by those engaged in enfranchisement proceedings.

This article was written by James Souter. For more information please contact James on +44 (0)20 7427 6716 or james.souter@crsblaw.com.