Part V               

Jurisdictional relationships

Introduction

                    5.1              The Leggatt Review concluded that there are confusing overlaps of jurisdiction between the courts and LVH tribunals. It recommended the removal of such overlaps and related forum shopping opportunities.[1] As a result of these recommendations we have undertaken a preliminary review of the jurisdictional relationship between the courts and the LVH tribunals. The Leggatt Review’s reference to the “courts” is taken to mean in the main the county courts, as it seems likely that in practice this is the forum in which the potential for overlap in jurisdiction is most likely to arise.[2]

                    5.2              The issue of concern raised by the Leggatt Review appears to be limited to party and party disputes, as opposed to citizen and state disputes. The former involve private law matters over which the courts may also possess jurisdiction, whereas the latter involve administrative law matters over which the courts normally exercises no jurisdiction.[3]  It follows therefore that overlaps in jurisdiction are most likely to arise in relation to tribunals that deal mainly with party and party disputes.

                    5.3              The jurisdiction of tribunals and  courts can be shared in a number of conceptually distinct ways. The following terms are used to distinguish the different types of relationship involved.

                                            (1)             Joint jurisdiction: jurisdiction is directly conferred by way of express statutory provision on both a tribunal and the courts.[4] The sharing of jurisdiction is therefore clearly intended.

                                            (2)             Overlapping jurisdiction: shared jurisdiction arises from two separate legislative sources.[5] The sharing of jurisdiction may not, on the face of it, be intended.

                                            (3)             Contingent jurisdiction: the courts’ shared jurisdiction is contingent on a related matter being brought before it.[6]

                                            (4)             Interlocking jurisdiction: the tribunal and the court determine distinct matters that may arise in the context of a single dispute.[7]

                    5.4              The aim of this part is to examine the nature of the relationship between the LVH tribunals and the courts, summarise the instances where shared jurisdiction arises and  raise questions as to the need for reform.

                    5.5              We have not at this stage set out any suggestions for jurisdictional reform. We have rather set out our understanding of some of the problematic issues in this area and invite consultees to let us know how the LVH tribunals work in practice.  Consultees are invited to provide information on the instances where shared jurisdiction arises, and their views on whether individual instances of shared jurisdiction are beneficial or detrimental to the determination of disputes. We believe, depending on the circumstances, that there may be both advantages and disadvantages to shared jurisdiction. It may be desirable where it enables a single adjudicative body to determine all elements of a dispute (rather than splitting the issue between the courts and the relevant tribunal). However, where it permits forum shopping or gives rise to confusion without any attendant benefits it may require reform.[8] We have not considered the much wider and more general question of which of all the LVH jurisdictions should be allocated to the courts and which to tribunals.

Individual Tribunals

Adjudicator to HM Land Registry

                    5.6               There are two areas where there seems to be some element of joint jurisdiction between the adjudicator and the High Court. The following is one example.

                    5.7               The Agricultural Land Tribunal exercises party and party jurisdiction in relation to certain matters pertaining to agricultural land.[9] There is no indication from the statutory frameworks within which its jurisdiction is conferred of any sharing of jurisdiction with the county court. The Agricultural Land Tribunal forms one part of a complex system of dispute resolution in matters concerning agricultural land, with several different jurisdictions handling a variety disputes over agricultural property. Jurisdiction for different disputes relating to agricultural land is divided between the Agricultural Land Tribunal, the courts, the Rent Assessment Committee, ADR, and legislatively prescribed arbitration.[10] The Lands Tribunal also has jurisdiction over compensation disputes concerning agricultural land under the Land Compensation Act 1973. The various dispute resolution methods fit together in a form of loosely interlinking jurisdiction, and there is no sharing of jurisdiction as defined in this paper.[11]

Commons Commissioners

                    5.8               The Commons Commissioners exercise jurisdiction over certain determinations by registration authorities concerning the registration of common land. Thus they are a citizen and state tribunal and therefore unlikely to share jurisdiction with the county courts.

                    5.9              There appears to be no real sharing of jurisdiction between the Lands Tribunal and the courts. The Lands Tribunal’s first instance jurisdiction is almost entirely in the public law field.[12] The Lands Tribunal does exercise jurisdiction in relation to a relatively small number of disputes that have a private law flavour,[13] however, no provision within the respective statutory frameworks relating to these jurisdictions indicates the existence of a joint or contingent jurisdiction between the Lands Tribunal and the courts.[14]

                5.10              A type of jurisdictional overlap between the Lands Tribunal and the courts was raised in our consultation paper on compulsory purchase.[15] Rights to compensation for injurious affectation under section 7 or section 10 of the Compulsory Purchase Act 1965 arise only in respect of the lawful use of statutory powers. If the damage results from those powers being exceeded, the proper remedy is a common law claim to the courts. As the boundary is not clear, there may be confusion over the proper forum in which to start the claim.

                5.11              The Lands Tribunal’s appellate jurisdiction (that is, over decisions of Valuation Tribunals and Leasehold Valuation Tribunals) does not raise any issue in relation to the sharing of jurisdiction with the county court. The possible exercise of review jurisdiction by the High Court in respect of decisions made by lower tribunals over which there is an appeal to the Lands Tribunal does not directly impact on the issue of shared jurisdiction.[16]

Leasehold Valuation Tribunals

                5.12              Leasehold Valuation Tribunals and county courts both exercise jurisdiction in relation to private landlord and tenant matters. The county court’s jurisdiction in relation to landlord and tenant matters is both of a general and a special nature. It has a general jurisdiction to hear any claim for the recovery of land and any claim in which the title to any hereditament (including leasehold interests[17]) comes into question,[18] and it has special jurisdiction to determine specific landlord and tenant related matters provided for under individual enactments. Leasehold Valuation Tribunals exercise jurisdiction in relation to such matters as the valuation of interests on leasehold enfranchisement, lease renewals and extensions, and estate, service and administration charges. There is therefore a close relationship between Leasehold Valuation Tribunals and county courts in terms of their jurisdictional remits. Our review of Leasehold Valuation Tribunals identified the existence of joint, contingent, overlapping and interlocking jurisdictions between the Leasehold Valuation Tribunals and the county courts.[19] The following are some examples.

                                            (1)             Joint jurisdiction: under paragraph 8 of the Schedule to the Landlord and Tenant Act 1985, jurisdiction is given to either the Leasehold Valuation Tribunal or the county court to deal with disputes between landlords and tenants relating to insurance.

                                            (2)             Overlapping jurisdiction: under sections 27A(1) and 27A(3) of the Landlord and Tenant Act 1985, the Leasehold Valuation Tribunal has jurisdiction to determine actual and prospective liability to pay service charge. Section 27A(7) of that Act states that the jurisdiction conferred on a Leasehold Valuation Tribunal under section 27A is in addition to any jurisdiction of a court in respect of the matter. Section 27A(7) does not itself confer jurisdiction on any court. The purpose of the section seems to be to make sure that county courts (and small claims courts) can continue to exercise jurisdiction in relation to the collection of unpaid service charge as debts. When exercising such jurisdiction they may be required to consider the matters referred to in sections 27A(1) and 27A(3).

                                            (3)             Contingent jurisdiction: under section 52(3) of the Landlord and Tenant Act 1987, where a county court hears a proceeding in exercise of a jurisdiction conferred on it, it may also assume jurisdiction to hear matters that are joined with those proceedings that it would not otherwise have jurisdiction to hear. County courts could therefore potentially hear all Leasehold Valuation Tribunal matters under the Landlord and Tenant Act 1987.

                                            (4)             Interlocking jurisdiction: the Leasehold Valuation Tribunal and the county courts determine separate but closely related matters relating to leasehold enfranchisement. Under section 20 of the Leasehold Reform Act 1967, county courts have jurisdiction to determine such matters as the tenant’s entitlement to acquire the freehold. Under section 21 of that Act the Leasehold Valuation Tribunal determines disputes in relation to the amount payable for a freehold so acquired.

Rent Assessment Committees

                5.13              Rent Assessment Committees determine a number of specific matters in relation to regulated and assured tenancies in the private rented sector. The review of Rent Assessment Committees[20] identified the existence of joint, contingent and interlocking jurisdictions between Rent Assessment Committees and the county courts. The following are examples.

                                            (1)             Joint jurisdiction: Schedule 10 of the Local Government and Housing Act 1989 provides for the establishment of assured tenancies on the termination of long residential tenancies that are held at low rents. Paragraph 19(3) of that Schedule applies (with modifications) Schedule 5 of the Landlord and Tenant Act 1954 for the purposes of Schedule 10. Schedule 5 of the 1954 Act makes detailed provision for when the intermediate landlord of a tenancy is not the freeholder. Paragraph 19(3)(d) of Schedule 10 provides that any reference to the court in Schedule 5 of the 1954 Act includes a reference to a Rent Assessment Committee. The court[21] and the Rent Assessment Committees therefore here have joint jurisdiction.[22]

                                            (2)             Contingent jurisdiction: section 40(3) of the Housing Act 1988   provides that whenever the county court exercises jurisdiction conferred on it under that Act,[23] it may also hear any other joined proceedings notwithstanding that those proceedings would otherwise be outside of its jurisdiction. It can therefore in these circumstances hear cases that would otherwise be within the jurisdiction of the Rent Assessment Committee.

                                            (3)             Interlocking jurisdiction: under paragraph 9 of Schedule 11 of the Rent Act 1977, Rent Assessment Committees have jurisdiction to determine individual disputes pertaining to the assessment of fair rent by a rent officer. County courts have jurisdiction under section 141(1)b of that Act to determine the maximum fair rent chargeable in respect of a dwelling that falls within the Act.[24]

Rent Tribunals

                5.14              Rent Tribunals determine a number of matters relating to dwellings that are let under restricted contracts pursuant to the Rent Act 1977. The review of Rent Tribunals[25] identified the existence of interlocking jurisdictions between Rent Tribunals and the county courts. The following is an example.

                                            (1)              Interlocking jurisdiction: county courts have jurisdiction under section 141 of the Rent Act 1977 to determine whether a particular contract is within the Rent Tribunal’s jurisdiction, whereas the Rent Tribunal has power under section 78 of that Act to make a determination of the rent payable under the contract. 

Valuation Tribunal

                5.15              The Valuation Tribunal exercises jurisdiction in relation to disputes over non-domestic rates, drainage rates and council tax. These are public law and local government matters. There is no evidence of any sharing of jurisdiction with the county court or the High Court.

                5.16               There is a loose form of sharing of jurisdiction with the magistrates’ court. The magistrates’ court has jurisdiction to determine who is liable for payment of non-domestic ratings. This is done by making a liability order under the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations.[26] Conversely, jurisdiction over determinations of liability in non-payment of council tax falls to the Valuation Tribunal under the provisions of the Local Government Finance Act 1992.[27] This is therefore an example of “interlinking” jurisdiction, in that the areas of jurisdiction are clearly demarcated by the legislative instruments, and the confusion created by overlapping jurisdiction does not arise.

Sharing of Jurisdiction Between Tribunals

                5.17              The Leggatt Review indicated that there is some sharing of jurisdictions between the individual LVH tribunals themselves.[28] Our review of tribunal jurisdictions did not reveal the existence of any clear overlaps. The jurisdiction of each tribunal appears to be self-contained (except to the extent that jurisdiction is shared with the courts). While the statutory schemes do not reveal any shared jurisdiction, there may in practice be confusion over each tribunal’s functions. We should be grateful for information from consultees about whether there are any overlaps between the individual LVH tribunals or any confusion in practice about the exact functions of each. There is also the possibility of problematic overlap between LVH tribunals and tribunals dealing with different but related subject areas, for example the tax tribunals. We invite consultees’ view of whether any such problematic overlaps exist in practice.

The need for reform

                5.18              From the above review of the relationship between the courts and the LVH tribunals we have concluded the following.

                5.19              The above review has focused primarily on the relationship between the courts and the tribunals from the perspective of the legislative instruments under which the tribunals derive their jurisdiction. County courts also have a general jurisdiction in relation to contract and title matters under the County Courts Act 1984. It may be the case that in practice the greatest source of confusion arises in the context of the exercise by the county court of its general jurisdiction. The same may be true in relation to the High Court. It is not possible however at this preliminary stage to state conclusively the extent of the overlap in jurisdiction between the courts and the LVH tribunals and the problems to which they give rise.

                5.20              In conclusion, our review has not revealed any obvious flaws in the existing jurisdictional arrangements. There is undoubtedly a close relationship between the county courts and the RPTS tribunals and in some cases the division of functions appears to be unnecessarily complicated. There may be problems if jurisdictional overlaps deter  potential users from bringing cases or allow some applicants to take unfair advantage of any confusion by forum shopping. However, the question of whether jurisdiction should be rationalised by clearly allocating functions to tribunals as opposed to courts or vice versa can only be decided after consultation with persons experienced in the day-to-day practice of tribunals and the courts.

                5.21              Does this Part adequately summarise the jurisdictional relationship between the courts and the LVH tribunals?

                5.22              Does the county courts’ or the High Court’s general jurisdictions give rise to further overlaps in jurisdiction with the LVH tribunals which have not been identified in this Part? Please give specific examples where possible.

                5.23              Are there any overlaps between the individual LVH tribunals? Is there confusion in practice regarding the appropriate tribunal in which to have a land, valuation or housing matter resolved? Please give specific examples where possible.

                5.24              Do the current jurisdictional arrangements permit forum shopping? What are the factors that influence which forum is chosen?

                5.25              Is there a need for a rationalisation of functions between the courts and the LVH tribunals? Please give specific examples of problematic areas and particular experiences where possible.

                5.26              If so, should functions that are now shared be transferred to the exclusive jurisdiction of the relevant tribunal or to the exclusive jurisdiction of the courts?