In the last debate before the summer recess, MPs considered the role of the Property Tribunal. MP Jim Fitzpatrick set out an extensive list of failings which he put at the door of the Tribunal saying that a number of his constituents found the system “stinks”
“The first-tier tribunal is supposed to offer a simple, informal and inexpensive way forward—they wish! I look forward to hearing what the Minister has to say to explain or defend the procedure as it stands because, in the experience of my constituents, it stinks.”
Mr Fitzpatrick described the Tribunal as being far from the “semi-formal” environment which parliament intended, explaining:
“However, we now regularly see highly specialist barristers and even QCs appearing for landlords before what are often part-time solicitor judges in what are meant to be our lowest form of court.”
Under Secretary of State for the Ministry of Justice, Lucy Frazer confirmed that the Tribunal was intended to be “expert jurisdiction” which is both more accecsible and less formal than the courts. She explained:
“The hon. Gentleman raised an important point about the inequality in some cases in relation to parties in the property chamber. He was right to say, as my hon. Friend the Member for Beckenham (Bob Stewart) was, that certain features of the tribunal are designed to make it less formal and more accessible than the courts. Where one side has retained legal representation, tribunal members are trained not to permit attempts at oppressive behaviour by legal representatives and will help unrepresentative parties to frame questions where necessary.”
Many lay litigants will find the Ministers view of the Tribunal at best over-optimistic.
In the 2018 “Senior President of the Tribunals’ Annual Report, the section on the Property Chamber was written by Chamber President Judge Siobhan McGrath. She starts:
“The Property Chamber Tribunals provide accessible and proportionate dispute resolution in an important area of law”
Perhaps maybe a bit like this court?
Although created as an expert jurisdiction sad fact is that some judges choose not to assist the parties with their expertise or do not have the skills to do so. Even judges in the Upper Tribunal appear to have a limited understanding of more complex factual matters relating to accounts, insurance and building management.
Some years ago Upper Tribunal Judge Mole spent an inordinate amount of time in one case pontificating on what the meaning or “over” and “under budgeting” might mean. He then concluded, “But budgeting is notoriously neither easy nor precise “. Another Upper Tribunal judge recently asked was it possible to have a computerised accounting package that did not use the general ledger (note to judges we have nominal ledgers not general ledgers. General ledgers are used in America) and is it possible to easily export a file of the records from these sorts of computer systems.
Maybe Judge Mole did not understand the reason why we have accountants rather than judges to create budgets is that judges are trained to understand the law and accountants are trained to understand how to create budgets? If someone found budgeting “notoriously” neither easy nor precise they’re probably not a real accountant.
Judges are sometimes a little too keen to stifle lay on submissions or lead them into agreeing on something which is perhaps to their disadvantage. As Jim Fitzpatrick set out:
“Cases often go on for days, with landlords’ counsel ponderously reviewing the most basic elements of a lease and the simplest issues of law. In some cases, tribunals seem to allow counsel to pontificate on the rights supposedly provided to leaseholders, which can be either uneconomic or impossible to apply”
The Minister then went on to set out what is a legally correct but wholly factually inaccurate position on the costs regime. For many years the Ministry of Justice and the Tribunals have turned a blind eye to the fact that the lease entitled the landlord to his costs in most cases. MoJ persists with the delusion that as it’s not the Tribunal making the decision to hand on these costs because it’s in the terms of the lease and that this somehow makes it not their problem unless they decide to intervene where they do have powers to control costs but only for one party. This may explain why the Tribunals have just spend a considerable amount of time and money looking at the issue of tribunal awarded wasted costs orders which only apply in a very limited number of cases.
Perhaps next time the courts consider costs they might at least ponder to what extent the nature of the cost regime means we have a huge imbalance in bringing or defending cases? Or as Mr Fitzpatrick explained:
“leaseholders have found that it is heads the landlord wins, and tails the leaseholders lose.”
There is perhaps no better an example of how deeply corrupted the Tribunal system seems to have become than cladding. We have government Ministers very clearly saying that leaseholders should not have to pay to remove or replace their defective cladding. At the same time we have landlords taking matters to the Tribunal to prove the leaseholders are fully liable for the costs of removing and replacing the cladding, the waking watch and even the landlord’s costs of taking the matter to the Tribunal. It can be assumed the landlords have been spending 10 times as much as the leaseholders in each of the cladding cases knowing this “semi-formal” Tribunal system will be more than likely to pass those costs straight back to the service charge for the leaseholders to pay.
One other point worth noting in President McGrath’s review of the property tribunals performance is her comment:
“Residential Property division of the Chamber is greatly assisted by LEASE which as a government funded advice organisation is able to provide assistance to Tribunal users”
How many more years does this mutual back-scratching nonsense about the supposed help offered by LEASE need to go on? Both the President of the Tribunal and the government should know there is a very good reason why LEASE is keenly welcomed by some of the countries most notorious landlords.
Even Martin Paine’s property management company Circle Residential Managment Ltd provides the following endorsement for LEASE as the first contact point they suggest for their tenants:
“LEASE, The Leasehold Advisory Service, is funded by Government to provide free legal advice to leaseholders, landlords, professional advisers, managers and others on the law affecting residential leasehold and commonhold. A useful site for all your leasehold queries.”
Mr Paine’s actions have been regularly reported by LKP but we doubt we will appear on the list of organisations he recommends to his leaseholders.