By Harry Scoffin
Radical reforms to the property tribunal system which will impact on how leaseholders access justice are being considered as the coronavirus emergency rocks the HM Courts & Tribunals service.
Its judges are examining whether “remote hearings” could involve popular video conference platforms such as Skype or Zoom.
This would be a radical innovation for the property tribunals, which have not hitherto been noted for embracing cutting edge technology – even judicial rulings are merely unsearchable photocopies of paper documents.
They are also reviewing plans to draft in “non-legal” experts to help reach decisions on leasehold disputes.
Siobhan McGrath, the president of the first-tier tribunal, confirms that the coronavirus emergency is forcing judges and case officers to turn towards digital justice:
“As to new ways of working, we will spend time considering the options for video and telephone hearings and we will put together guidance and processes for enabling these to take place.”
In an appeal to readers of Leasehold Knowledge Partnership, Judge McGrath says she and her colleagues are asking for leaseholders’ patience and understanding during these unprecedented times as they experiment with new procedures to cope with the caseload:
“In order to comply with the government advice on social distancing, we took the decision last week to postpone all face to face hearings and mediations listed for at least the next four weeks and in some cases further into the future. We now plan to regroup and to explore new ways of dealing with our caseload.
“We hope that users will understand the reasons for delays in dealing with cases and that they will feel able to help us by avoiding unnecessary correspondence as this will make case management easier for everyone.”
Her remarks follow a guidance note for users of the first-tier tribunal (property chamber) issued on Thursday.
On face to face hearings, the six-page document says:
“We will conduct no further face to face hearings or mediations until further notice. Any hearings or mediations that we do convene will be carried out remotely for example, using Skype or by telephone. Alternatively, we will make determinations on consideration of documents alone.”
“… we believe that it will take us several weeks to secure suitable means of offering remote hearings and therefore parties should not expect to hear from us for at least six weeks.
“Before the end of May, we will decide whether any face to face hearings listed after that day will also need to be postponed.”
The advice confirms that site inspections are suspended for at least six months.
Echoing Judge McGrath’s remarks, there is an acknowledgment that tribunal judges and case officers cannot be expected to operate at normal capacity because of coronavirus lockdown rules in England:
“The administration of our cases depends on the input of administrative staff as well as the availability of judiciary. Although we are exploring ways to continue working even if the Tribunal offices are shut, we know that we will not be able to provide a full service. We will do our best to keep cases under review and in good order however, please only communicate with the Tribunal when necessary and please use email.”
The specific guidance from the first-tier tribunal builds on two emergency practice directions released last week by Sir Ernest Ryder, the senior president of the tribunals, which hinted at a shift to digital and other sweeping reforms.
Invoking special powers, Sir Ernest has ordered a six-month pilot programme for the first-tier tribunal and upper-tier tribunal to trial online hearings and increased digital working.
Sir Ernest is also encouraging the use of more “non-legal” experts and single judge panels, which LKP believes promises greater fairness for leaseholders.
Determinations on leasehold disputes could increasingly rely on the basis of the evidence submitted by parties and insight from professionals with significant experience of major works and other estate management issues.
If Sir Ernest’s reforms are enacted following a successful pilot, there would be less room for smooth barristers and legal technicalities to scupper leaseholder rights, campaigners believe.
LKP chair Martin Boyd said:
“The move to single judges is a positive for leaseholders. Judges still might refer some of the issues to one of the other experts on the panel, providing that everything is recorded. I expect the reforms to streamline the tribunal process.
“The age-old arguments against non-legal panel experts and single judges is that such changes will prejudice the smaller person, the leaseholder, but actually no. Upper tribunal hearings have one expert judge and it works extremely well. The new system will hopefully also stop some of the lawyers’ game-playing tactics.”
It is hoped that Sir Ernest’s intervention amidst the coronavirus emergency portends a longer-term transition away from slow, paper-based systems to streamlined, efficient digital services.
HM Courts & Tribunal Service has been far too slow to modernise, Whitehall’s watchdog has said.
In September, the National Audit Office found that “projects to support online resolution, video hearings and digital case management are late”, saying it did “not record any progress” from the last time it scrutinised the agency’s “ambitious portfolio of reforms that aimed to modernise the justice system, reduce complexity and provide new ways for people to engage.”
LKP support video-link hearings for leasehold cases as this would promote transparency, which is important given the property tribunal system is dealing with people’s homes.
LKP has also been calling for the property tribunal to be brought into line with the country court by having its hearings transcribed.
Speaking at a Westminster Legal Policy Forum conference earlier this month, Judge McGrath said she expects this will happen by the end of the year:
“So, I think the question is: ‘Why are tribunal hearings not recorded?’ That’s a very good question. I have been asking for tribunal hearings to be recorded for at least five years.
“As part of HMCTS reforms, I understand that resources will be given to provide suitable equipment for recordings. It is something that is partly separate from [their] reform [agenda] and something that I think is required in all proceedings for the sake of transparency and access to justice.
“And I hope that before the end of the year, but by the end of the year, definitely, but I hope much sooner than that. But where we sit double-hatted as county court judges, we record in any event.”