The Law Commission

PART V

OPERATION OF THE REFORMED TRIBUNALS

Introduction

5.1      In Part IV we set out our proposed new structure for the project tribunals. In this Part we consider important matters about the more practical operation of the tribunals in our proposed system. We consider these matters only in relatively broad terms. The precise way in which the tribunals would operate on a day to day basis can only be determined by those who would be in charge of practical operational matters. Much of the detail of what we propose would be contained in secondary legislation, Practice Directions or internal tribunal procedure documents.

Regional structure

5.2      The project tribunals have different regional structures. For example, the Lands Tribunal primarily sits in its own courts in London, although it also sits elsewhere in the country if this is more convenient for parties. There are 56 Valuation Tribunals, which are organised on a county and unitary authority basis in rural areas, and a district or borough basis in metropolitan areas. The RPTS tribunals have five Rent Assessment Panel areas in England. The Agricultural Land Tribunals have a regional structure based on the offices of the Department for Environment, Food and Rural Affairs.
5.3      Our proposed PVT would need to have a single regional structure. This would sensibly build on the estate and regional structure of the current project tribunals. The geographical locations would have to reflect the reality of the tribunal's jurisdictions and facilitate the use of the current expertise in each jurisdiction. The setting up of the final regional structure would inevitably have to take place over a period of time. We understand that there will be a regional structure for the unified Tribunals Service which will be mapped onto the Government Offices for the Regions. The PVT regional structure should reflect this.
5.4      The reformed Lands Tribunal would continue to be based at the Lands Tribunal's courts in London, but as the Lands Tribunal does now, it would be able to sit elsewhere in the country where appropriate. The Lands Tribunal would, in our proposed model, be able to take advantage of the regional structure of the PVT to assist with local hearings.

Members and staff

5.5      The current project tribunals have different combinations of Presidents, Regional Chairs, chairs and members. For example, each regional Rent Assessment Panel within the RPTS system has a President, at least one Vice-President, chairs and members,^[1] and there is a non-statutory Senior President. Each regional Agricultural Land Tribunal has a Chair, Deputy Chairs and members,^[2] but there is no central Presidential role. The Lands Tribunal simply has a President and tribunal members.^[3]
5.6      One consequence of a unified system would be that the PVT and the reformed Lands Tribunal would each have to have a single, coherent membership structure. The Leggatt report's recommendation was that appellate and first tier tribunals should have a President, together with Regional (and possibly also District) Chairs in the largest first tier tribunals,^[4] with tribunal chairs continuing to have a pivotal role.^[5]
5.7      We consider that this Leggatt model is a sensible one for the project tribunals. For the reasons explored in paragraphs 5.9 – 5.14 below, we think that there should be a President at the head of the Lands Tribunal (as there is now) and a President at the head of the PVT. The PVT should also have a Regional Chair for each of its regional tribunals.^[6]
5.8      If our proposals were accepted, the PVT and the reformed Lands Tribunal would be sponsored by the Department for Constitutional Affairs.^[7] Recommendations for the appointment of tribunal Presidents, chairs and members may be a matter within the remit of a new Judicial Appointments Commission when it is established.^[8]

Presidents and Regional Chairs

5.9      The Lands Tribunal has a President at its head, and the RPTS tribunals, although they sit regionally, have a central Senior President. The Valuation Tribunals have a central Management Board with three Presidents.^[9] The Agricultural Land Tribunal, also a regional body, does not have a central President. The Commons Commissioners have a Chief Commons Commissioner and the Adjudicator will be a single post.
5.10      The Council on Tribunals has emphasised the importance of a Presidential system as a means of promoting a tribunal's independence. The Council has recommended that tribunals should have a judicial head who should be responsible for securing the conditions for independence which include among other things proper procedural rules, proper training and a high standard of judicial performance.^[10]
5.11      The central role and importance of the President was also noted in the Leggatt report. The report stated that the President's role is to promote consistency of decision-making and uniformity of practice and procedure.^[11] It cited other key Presidential functions as personally hearing cases that raise novel and complex issues, and having overall responsibility for training, case allocation and recruitment.^[12]
5.12      We consider that it is advantageous for tribunals to have a Presidential head, for the reasons cited above. We therefore propose that the reformed Lands Tribunal and the PVT should each be headed by a President.
5.13      We have noted that the reformed Lands Tribunal should continue to operate mainly out of the Lands Tribunal's courts in London. The PVT, on the other hand, would have a regional structure. Each regional office would need to have a judicial head to take control of the judicial management of that office, under the overall control of the President of the PVT. We therefore recommend that the PVT should have Regional Chairs.
5.14      The present qualification requirements for the President of the Lands Tribunal are that the President must have held judicial office, have a seven year general qualification or be a member of the Bar of Northern Ireland of at least seven years' standing.^[13] We do not propose any change to these requirements. We propose that the President and Regional Chairs of the PVT should have the same qualifications as the President of the Lands Tribunal.

Members

The main body of members

5.15      Specialist tribunals must have members who are specialists in the tribunals' areas of jurisdiction. The membership of the two reformed tribunals in our proposed system would therefore, at least initially, be made up of the existing members of the current project tribunals. Current members of the project tribunals would become either a member of the PVT or a member of the reformed Lands Tribunal. Each member would have one or more "specialisms", which would reflect their current area or areas of expertise. Members would be allocated to sit in cases within their area of specialism. Member specialisms are discussed in further detail at paragraphs 5.20 – 5.25 below.
5.16      At present there is a mixture of full-time and part-time members in the project tribunals. Members of the first tier project tribunals are part-time, as are the Commons Commissioners. The Lands Tribunal is predominantly made up of full-time members, and the Adjudicator will be a full-time post.
5.17      We recognise that it is important to retain the flexibility to have both full-time and part-time members. Each brings advantages to the system. Part-time members bring their continuing experience of work outside the tribunals. Full-time members are able to become more involved in the running of the tribunal, and may have a role in aspects of tribunal management and training.^[14] In our system, members of the PVT and the Lands Tribunal would be either full-time or part-time members as appropriate. The PVT and the reformed Lands Tribunal might employ a combination of full-time and part-time members as appropriate, and our system would be sufficiently flexible to accommodate this. We note that there is no provision in the Land Registration Act 2002 for the appointment of deputies to the Adjudicator, and the Act may need to be amended to provide for such appointments.

Membership panels

5.18      The current project tribunals operate with a number of different categories of members. Members are either legal, professional or lay members, although this is not always a clear cut classification. Surveyors and valuers are clear examples of professional members who have a recognised qualification in their areas of expertise. There are, however, other ways of acquiring expertise. In the Agricultural Land Tribunal, there is a panel of members which represents the interests of farmers and a panel of members which represents the interests of owners of agricultural land.^[15] Although these members may not have formal professional qualifications, they are specifically chosen for their expertise in agriculture. We therefore regard them as expert members. They can be contrasted with the lay members of Valuation Tribunals and the RPTS tribunals, for whom there are no particular qualification or expertise requirements.
5.19      We recognise that these different categories of member would have to be properly integrated in a unified system. We consider this should be done by establishing panels of different types of members in both the PVT and the Lands Tribunal. In the PVT, there would be three such panels: legal members, professional members and lay members. In the Lands Tribunal, there would be two panels: legal members and professional members. The professional members in each tribunal would include surveyors, valuers and the wing members of the Agricultural Land Tribunals. The lay members in the PVT would initially be the current lay members of the Valuation Tribunals and the RPTS tribunals.^[16] Where appropriate, tribunal members could belong to more than one panel.

Member specialisms

5.20      Each of the panels of legal, professional and lay members would be subdivided to reflect the fact that every member of the tribunal would have their own "specialism", that is, a particular area of expertise. The specialisms reflect the importance of retaining and taking advantage of the expertise of tribunal members in a reformed unified structure.
5.21      In our consultation paper, we discussed the possibility of "ticketing" members for different types of case. We explored the possibility of members being ticketed to hear several different types of case, with a possible move over time towards members being able to hear all types of case within a unified tribunal. We have been persuaded by the consultation process that the idea of tribunal members being able to hear all types of cases would be too radical.
5.22      We have instead moved towards a recognition that every member of the current project tribunals should be recognised to have a specialism in their area of expertise. Specialisms come not only from the professional background of some members, but also from training and the experience and expertise built up by sitting members of the tribunals over time. For example, members of the Valuation Tribunal, although lay members, acquire expertise through hearing a number of cases over a period of time. Initially the specialisms would equate to the current jurisdictions of each of the project tribunals. For example, a member of our proposed PVT might have a specialism in agricultural land disputes, or in local government finance disputes. This might, of course, change over time.
5.23      The concept of member specialisms would primarily apply to the PVT rather than to the Lands Tribunal. In our proposed system, the reformed Lands Tribunal would be based largely on the existing Lands Tribunal. We have suggested that the Adjudicator and the Chief Commons Commissioner be retained as discrete posts within the reformed Lands Tribunal. There would therefore be no need to allocate specialisms to the members of the Lands Tribunal. Cases which are now within the jurisdiction of the Commons Commissioners would be heard by the person designated as the Chief Commons Commissioner, sitting within the reformed Lands Tribunal. Cases now within the jurisdiction of the Adjudicator would be heard by the person designated as the Adjudicator to HM Land Registry, sitting within the reformed Lands Tribunal. The remainder of cases, that is those which are now within the jurisdiction of the Lands Tribunal, would be heard by the current members of the Lands Tribunal. The President could still in practice allocate these Lands Tribunal cases to the Chief Commons Commissioner or the Adjudicator if he thought it appropriate, but we do not think the concept of specialisms would be needed to do this.
5.24      Each member of the PVT would have their own specialism, based on their existing expertise. Members would in time be able to acquire additional specialisms through training and sitting on different types of cases if they chose to do so. For example, a legal member who previously sat in the Agricultural Land Tribunal might chose to gain experience of and develop an additional specialism in residential property disputes, in order to sit on cases previously heard in the RPTS tribunals. This system of specialisms would enable a more flexible and efficient use of adjudicative personnel than the current structure allows, and would have the additional benefit of providing a range of work and career development for members. An advantage of a unified tribunal system with more diverse areas of work available and possible career progression is that this could assist in the recruitment of additional high calibre members in the future.
5.25      We explore in paragraphs 5.47 – 5.54 below the way in which the membership panels and member specialisms would be used in case allocation.

Additional members

5.26      We think there should be a sufficient level of flexibility to ensure that cases are always heard by the right members. This should, we believe, include the possibility of bringing in additional expertise from outside of the regular membership of the PVT or the Lands Tribunal where necessary.
5.27      We consider that it would benefit the tribunals, especially our proposed reformed Lands Tribunal, if High Court or circuit judges were able to sit in tribunal hearings on occasion. Judges could be appointed to a special panel of tribunal members and sit on appropriate cases in the tribunals.
5.28      There could also be opportunities for members of the PVT to sit in the Lands Tribunal in appropriate cases. PVT members could be appointed to the panel of Lands Tribunal members. As well as providing additional expertise to the Lands Tribunal, this could provide interesting and valuable experience for the members of the PVT.

Future members

5.29      We have noted that the initial members of the proposed PVT and reformed Lands Tribunal would be the current members of the project tribunals. Some thought would also have to be given to the appointment of future members of the reformed tribunals. The current members of the project tribunals have a diverse range of qualifications.^[17] We think that, for the future, there should be a flexible power for the appointment of members with suitable qualifications to the PVT and the reformed Lands Tribunal. In Part VII, we suggest that primary legislation could provide for the three membership panels,^[18] with the power for members with appropriate qualifications to be appointed to each of these panels.^[19]

The registrar and deputy registrars

5.30      The Lands Tribunal has a registrar who has a number of functions. Many of these functions are conferred on the registrar by the Lands Tribunal Rules 1996.^[20] These include preliminary consideration of cases for jurisdictional purposes, service directions in restrictive covenant cases,^[21] allocation to the appropriate case procedure,^[22] general case management, the consideration of interlocutory applications,^[23] detailed assessment of costs,^[24] directions and certificates for rights of light applications^[25] and assisting in representing the tribunal in external relations with other bodies.
5.31      The Leggatt report recommended the appointment of registrars with a partly legal and partly managerial role. The report based its conclusions about the role of registrars on the registrar of the Lands Tribunal. The report essentially put forward the view that registrars should undertake preparatory pre-hearing work and make interlocutory decisions for the tribunal, under direction, as well as offering legal or procedural advice to tribunal members or administrators as required. The report suggested that registrars should be legally qualified, and that it might be useful for the powers and duties of registrars to be set out in legislation.^[26]
5.32      We consider that a registrar role would be beneficial in our proposed system, especially given the importance of case allocation and case transfer within the system (see paragraphs 5.47 – 5.60 below). Our view is that both the PVT and the reformed Lands Tribunal should have a registrar. The Lands Tribunal, as we have said, already has a registrar, but this would be a new post in the PVT. The registrar should have an important administrative role with some case management powers, in consultation with and under the direction of the President. Although the main powers and duties of the registrar could be contained in primary legislation, the precise division of functions between the President, the registrar and administrative staff would be a matter for secondary legislation and internal tribunal procedures. We think it important that the registrar should be legally qualified and that this should be stipulated in legislation.
5.33      The clerks in the Valuation Tribunals^[27] have a dual legal and administrative role. Their role is to attend tribunal hearings and to advise tribunal members about procedural and legal issues. In having both a powerful administrative and an important advisory legal role, the Valuation Tribunal clerks are similar to the office of the registrar which we describe above. We suggest that the clerks in the Valuation Tribunals should become deputy registrars in our proposed system. This would have the additional advantage that the regional offices of the PVT would each have one or more experienced deputy registrars, who could carry out many of the PVT registrar's functions in the regional offices under the management of the head registrar.

Administrative staff

5.34      The Leggatt report recommended that the administration of tribunals should be brought together in a single administrative service. The report considered that users would benefit from a single point of contact to tribunals and that the provision of central support services would mean greater administrative efficiency because of the possibilities of, for example, rationalising tribunal accommodation. The report cited the example of the Appeals Service, which has stated that its amalgamation of five social security jurisdictions has allowed it to move staff (and members) between jurisdictions when this is necessary. The Leggatt report also argued that a single tribunals service could be expected to yield better career opportunities for staff, who could move between different tribunal areas.^[28] This vision of a unified Tribunals Service has now been accepted by Government in its announcement that the ten largest non-devolved central government tribunals will be brought into a single service.^[29]
5.35      We agree that there are many potential advantages to unified tribunal administration. Certainly in a administratively unified system, there would be nothing to prevent the tribunals becoming more efficient by sharing experience and resources such as IT systems and staff training. Responses to our consultation paper showed that others also see advantages in a unified administration. For example, one consultation response referred to the business centres, a form of unified administration, that are being set up to support the work of the Immigration Appellate Authority.^[30]
5.36      A unified administration should draw on the strengths of the existing staff in the project tribunals who have had the opportunity to develop expertise in the tribunals' jurisdictions. The precise role of the current clerks and administrative staff in the project tribunals would need to be considered as part of the practical arrangements for the tribunals, to ensure there is no dilution of existing expertise.

Tribunal rules

5.37      The detailed procedural rules of the PVT and the reformed Lands Tribunal would largely be a matter for secondary legislation and the tribunals' internal procedures. In this section we consider some more general matters relating to the issue of a central procedural code and then some key rules which are central to our model. A large number of these are broadly speaking issues related to case management.
5.38      Whatever arrangements were put onto place for determination of the tribunals' rules, the Council on Tribunals should be consulted before the making of procedural rules. All of the project tribunals which would be unified in our proposed PVT and reformed Lands Tribunal are within the Council's remit.^[31]

A common procedural code

Feasibility of a common code

5.39      The current project tribunals each have different rules of procedure. In a unified tribunal system, we believe there would be benefits for users and for the tribunals themselves if there were a common set of up to date procedures. There are undoubtedly some areas where different jurisdictions would need some different procedural rules. However, it should be possible to have a common set of procedures in each tribunal with variants for different jurisdictions where necessary. The Council on Tribunals Model Rules of Procedure for Tribunals are a valuable resource for a common procedural code.^[32] These Model Rules are intended to be tailored to the circumstances of individual tribunals,^[33] for example, rules relating to entry onto land for inspections^[34] would be particularly relevant to the PVT and the reformed Lands Tribunal while others might be less relevant.
5.40      The Appeals Service rules of procedure can be taken as an example of a common set of procedures which makes provision for different rules where this is necessary for a different jurisdiction. The procedural rules for all appeals to the Appeals Service are contained in Part V of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.^[35] The regulations contain some rules that only relate to one of the tribunal's jurisdictions, that is child support cases. Regulation 44 provides for confidentiality in child support cases, and regulation 45 relates to consideration of more than one appeal under section 20 of the Child Support Act. These rules relate to specific aspects of the child support jurisdiction.
5.41      In the context of the project tribunals, some different procedural rules might be needed for those disputes which are between private parties and those which are between the citizen and the state. The Council on Tribunals Model Rules^[36] suggests alternative rules for disputes between private parties and those between the citizen and the state relating to the commencement of appeals or applications^[37] and action by the respondent on receipt of the appeal or application.^[38] These could be adapted for the PVT and the reformed Lands Tribunal as appropriate.

Rules Committee

5.42      Rule-making for the civil and criminal courts is assisted by Rules Committees. The Rules Committees in the court system are the following.

(1) The Civil Procedure Rules Committee,^[39] which makes rules for the Civil Division of the Court of Appeal, the High Court and the county courts.^[40] The Committee members are the Master of the Rolls, the Vice Chancellor, and twelve other persons including other judges, lawyers and persons with other particular experience.^[41] The rules for the civil courts are made by this Committee, subject to the approval of the Lord Chancellor.^[42]

(2) The Family Proceedings Rules Committee,^[43] which makes rules for family proceedings in the High Court and the county court.^[44] Committee members include the President of the Family Division, other judges and lawyers. The Committee may only make rules with the participation of the Lord Chancellor.^[45]

(3) The Magistrates' Courts Rules Committee, which advises on rules to be followed in magistrates' courts and by justices' clerks.^[46] The members of the Committee include the Lord Chief Justice, the President of the Family Division, the Chief Magistrate, lawyers and justices' clerks.^[47] The Lord Chancellor makes the rules of court after taking the advice of the Rules Committee.^[48] The Committee therefore has more of an advisory only role than the Civil Procedure Rules Committee or the Family Proceedings Rules Committee.

(4) The Crown Court Rules Committee, which makes rules for the Crown Court and the criminal division of the Court of Appeal.^[49] The members of the Committee are the Lord Chief Justice, other judges, the registrar of criminal appeals and lawyers.^[50] The Committee makes rules with the participation of the Lord Chancellor.^[51] It is therefore similar to the Family Proceedings Rules Committee in the exact way in which the rules are made.^[52]

5.43      There are also other Rules Committees which make rules other than rules of court. Some of these Rules Committees have non-lawyer expert members. The Insolvency Rules Committee has a practising accountant^[53] and the Land Registry Rule Committee has members nominated by the Royal Institution of Chartered Surveyors and the Council of Mortgage Lenders.^[54]
5.44      Our view is that, as there is in the civil and criminal justice systems, there should be a Rules Committee to assist with the making of procedural rules for our proposed PVT and reformed Lands Tribunal. Such a Rules Committee could bring together and utilise the expertise of senior members of the PVT and the Lands Tribunal, lawyers and other experts in land, valuation and housing matters.
5.45      The Rules Committee for the proposed PVT and reformed Lands Tribunal would sensibly be the Rules Committee which we understand is likely to be set up for the unified Tribunals Service. It is not clear whether a unified Tribunals Service Rules Committee would have an advisory role (like the Magistrates' Courts Rules Committee) or a stronger rule-making role (like the other three court Rules Committees discussed above). Our view is that a Rules Committee for the proposed PVT and reformed Lands Tribunal, as a body made up of experts in the field, should have the stronger rule-making role.
5.46      As noted above,^[55] a Rules Committee has been set up under the Land Registration Act 2002. This Rules Committee does not directly impact on procedures relating to the Adjudicator. The role of the Rules Committee is only exercisable in relation to "land registration rules".^[56] Rules under Part 11 of the Land Registration Act 2002 relating to the adjudicator are not land registration rules.^[57] The Rules Committee therefore technically has no function in relation to those rules, although it has been said that "in relation to other rules, the Lord Chancellor will no doubt seek the views of the Rules Committee even though he is not required to do so."^[58]

Case allocation

5.47      The proper allocation of cases to the members who have the expertise to hear them is a central feature of our proposed system. The allocation of cases to members from the appropriate panels and with the appropriate specialisms would be the function of the President of the Lands Tribunal, and of the President and the Regional Chairs in the PVT. In practice, the registrar of each tribunal (or the deputy registrars) might carry out much of the routine case allocation in consultation with and under the direction of the President and Regional Chairs where appropriate.
5.48      As noted above,^[59] members in the PVT and the reformed Lands Tribunal would be in panels of legal, expert or lay members. The members of the PVT would each have a specialism (we have noted in paragraph 5.23 above that member specialisms would not be required in the Lands Tribunal). The question arises as to how these panels and specialisms should be used to allocate members to cases. In particular, there are questions about how many members are to hear each case and from which of the panels members should be chosen for any one case.
5.49      At present, with the exception of the Valuation Tribunals, the composition of individual tribunals to hear cases is prescribed in primary legislation, as follows.

(1) In the Lands Tribunal, hearings may be before one or more of its members.^[60]

(2) A single person sits in Commons Commissioners hearings.^[61]

(3) The Adjudicator is a single person tribunal.

(4) In the RPTS tribunals, hearings must be before a chair and one or two other members,^[62] although the President may direct with the consent of the parties that the chair alone can exercise the tribunal's functions^[63] and when exercising functions of the Rent Tribunal under section 81A of the Rent Act 1977^[64] the chair sits alone.^[65]

(5) In the Valuation Tribunals, hearings are before three members, to include one chair, unless all parties agree that the appeal may be decided by two members.^[66]

(6) In the Agricultural Land Tribunals, there must be three members at each hearing, to comprise one lawyer, one agricultural expert representing the interests of tenants and one agricultural expert representing the interests of owners.^[67]

5.50      In our proposed system, how cases were allocated and the level of flexibility in case allocation would depend on how the mechanics of case allocation were set out in legislation. We see three ways that this could be done.

(1) Primary legislation could be used to prescribe how the tribunals should be constituted in different types of cases. This legislation would be similar to that which is now used in relation to the majority of the project tribunals, as described above.

(2) Primary legislation could set out broad powers relating to case allocation, leaving the details to be provided for in secondary legislation. A model for this is case allocation in The Appeals Service. The Social Security Act 1998^[68] provides that an appeal tribunal is to consist of one, two or three members drawn by the President from a panel of members.^[69] The details are filled in by secondary legislation,^[70] which states the cases in which the tribunal must consist of a legal member;^[71] both a medically qualified and a legally qualified member;^[72] both a financially qualified and a legally qualified panel member^[73] and so on. This system has the benefit of future flexibility of tribunal composition.^[74]

(3) Primary or secondary legislation could simply contain broad powers, leaving the precise details of case allocation to be dealt with by each tribunal's internal procedures. This would give the PVT and the Lands Tribunal a very broad power to decide which types of members should hear different cases.

5.51      We think that the model of the Appeals Service legislation is a good one. We consider that primary legislation should contain broad powers in a similar way to the Social Security Act 1998, with the details to be filled in by secondary legislation. This combines a degree of legislative structure with flexibility for future changes to that structure. Our proposed Rules Committee, made up of experts in the fields of land, valuation and housing would then be able to feed into the decision about how different individual tribunal sittings should be constituted using the panels of members available in the PVT and the Lands Tribunal. We expect that the various types of cases would at least initially be allocated to the same categories and number of members that hear those cases now, but that this might need to change over time.
5.52      In our proposed system, the new concept of "member specialisms" would also have to be used in the case allocation mechanisms. Member specialisms would relate to the particular types of case with which the member had had practical experience, or training, or both.^[75] We think that the details of allocation by reference to member specialisms should also be contained in secondary legislation. Cases would be allocated to members both by reference to the three panels and to member specialisms. A legislative structure for our proposed model is discussed further in Part VII of this report.
5.53      Our proposed case allocation system can be further explained with an example. In this scenario, the PVT receives an appeal relating to local government finance.^[76] Primary legislation has established panels of tribunal members, including a lay panel, and a set of specialisms, including a local government finance specialism. Primary legislation states that the President is to select members from the panels with the appropriate specialism to hear individual cases, in accordance with the rules set out in secondary legislation. Secondary legislation would state in this case that three members should hear the case and that these should be chosen from the panel of lay members of the tribunal. Secondary legislation would also require these three lay members to have a local government finance adjudication specialism.
5.54      The advantage of this case allocation system is that it would be flexible. The tribunal would have a wide pool of members from which to select the appropriate people to hear an individual case. This case allocation system would accommodate the different categories and expertise of members in the project tribunals. The case allocation system would also be sufficiently flexible to accommodate any future changes to tribunal composition which could be made by the Government in future legislation. For example, in paragraph 4.36, we recommend that the Government consider reviewing the adjudication of local government finance disputes. If such a review were to suggest changes to the current lay membership of the Valuation Tribunals, our proposed case allocation system would be able to adjust to any resulting changes.

Case transfer

5.55      We discussed in paragraphs 4.14 – 4.15 above the proposed delineation of jurisdiction between the PVT and the reformed Lands Tribunal. Notwithstanding these areas of jurisdiction, there may be some individual cases which would more suitably be heard at either a higher or a lower level. Some cases that commenced in the PVT might benefit from the expertise of the Lands Tribunal; similarly some smaller cases started in the Lands Tribunal might be more suitable for hearing in the PVT.
5.56      We have noted that although the majority of the Lands Tribunal's first instance jurisdictions are complex cases which require the special expertise of the Lands Tribunal, the tribunal does hear some less complex first instance cases.^[77] Cases which might often be suitable for transfer to the PVT might be those which are currently heard under the Lands Tribunal's simplified procedure. This procedure is said by the Lands Tribunal to be "suited to straightforward and simple cases, normally where the amount at stake is small and where the decision will not have implications for other cases."^[78] An example of a suitable case for transfer might be the case of Nesbitt v National Assembly for Wales,^[79] in which compensation relating to a single house was in dispute and the compensation awarded by the tribunal was £6,250.^[80] The Lands Tribunal has noted that although the tribunal can at present hear these cases under its simplified procedure, users might have a greater perception of tribunal accessibility if their compensation cases could, where appropriate, be heard by a regional first tier tribunal.^[81]
5.57      On the other side of the coin, it might be appropriate for large-scale or particularly complex service charge cases, for example, to be transferred to be heard at first instance in the Lands Tribunal. This would avoid unnecessary time and expenditure on a first instance PVT hearing with an appeal to the Lands Tribunal, if the case would clearly more appropriately be heard at first instance in the Lands Tribunal.
5.58      If some of the Lands Tribunal's first instance cases were to be transferred to the PVT, there would have to be some members of the PVT with a specialism in these jurisdictions. Members of the PVT would only properly be able to develop such a specialism by observing and sitting on a number of hearings in these jurisdictions. To some extent this could be done by their sitting in the Lands Tribunal where appropriate, as mentioned in paragraph 5.28 above. A sufficient number of the Lands Tribunal's first instance cases would also need to be transferred to the PVT for some members to properly be able to develop a specialism in this area.
5.59      We propose that there should be rules which allow for cases to be transferred from one tribunal to the other where this is appropriate, on a case by case basis. The precise details are a matter for secondary legislation and internal tribunal procedures, but we see the procedure being something along the following lines. Tribunal users would make their application to the tribunal which had initial jurisdiction to hear the case. The tribunal with initial jurisdiction would decide whether the case should be transferred as part of its case management powers. The tribunal would have power to make this decision either on the application of the parties or of its own motion.^[82] We expect that case law would develop over time which would assist the PVT and the Lands Tribunal in deciding when it was appropriate to make use of these case transfer powers.
5.60      It might become apparent over a period of time that some jurisdictions initially exercised by one level of tribunal were routinely being transferred under case transfer rules to the other tribunal. It might then be sensible for the initial jurisdiction to be rationalised accordingly.

Alternative Dispute Resolution

5.61      The Leggatt report stated that there was scope for ADR in land and property disputes, and asserted that "mediation has a proven record of efficacy in cases involving a number of parties with conflicting interests, and that is a common feature of leasehold disputes before the Leasehold Valuation Tribunal."^[83]
5.62      Consultees agreed that alternative dispute resolution can sometimes be a useful dispute resolution mechanism in land, valuation and housing disputes. Consultees told us that ADR can be useful in disputes between citizens and the state as well as in disputes between private parties. It was, however, noted that there is less need for ADR in a simple and more informal tribunal system.
5.63      We think ADR should be encouraged in our proposed PVT and reformed Lands Tribunal where this is appropriate. Our view is that the tribunals' procedural rules should include a statement that alternative dispute resolution is to be encouraged in cases before the tribunals where appropriate. The application of ADR to individual cases would depend on the circumstances of each case. Further detailed rules about ADR might be needed to take account of the needs of particular jurisdictions.
5.64      The rationalisation of the current tribunals might provide an opportunity for the rational development of alternative dispute resolution services in land, valuation and housing disputes. Consideration might also be given to expanding the role of the Independent Housing Ombudsman further into this area.^[84] ADR is clearly only possible as a dispute resolution mechanism if the necessary services are available to support its provision in practice.

Fees and costs

5.65      Some of the project tribunals charge fees to users, though the majority are free at the point of access.^[85] Some of the tribunals, notably the Lands Tribunal, have a power to award costs, while the majority of the project tribunals cannot do so.^[86]
5.66      One consequence of our proposed rationalisation of the project tribunals would be that there would be inconsistencies in the fees charged for different cases due to the tribunals' present fee structures. The issue of whether tribunals should charge fees and the level of any fees is a matter of policy for the Government and not a matter of law reform for the Law Commission. It would not be appropriate for the Law Commission to make specific recommendations about the issue of fees in tribunals. However, we recommend that if our proposals are accepted, there should be a departmental review of the fees charged in the project tribunals.
5.67      There are competing arguments about the costs powers that tribunals should properly have. On one hand, the power to award costs is linked to case management powers and the ability to impose costs sanctions would greatly strengthen the case management power of the project tribunals. On the other hand, there is a policy argument that tribunals should be as accessible as possible for users in terms of costs. One possibility might be that it would be appropriate for the reformed Lands Tribunal to be able to award costs but not for the PVT to be able to do so. This in turn raises questions about whether any power of the reformed Lands Tribunal to award costs should relate to both its first instance and its appellate jurisdictions. Another relevant distinction as regards costs powers may be whether a tribunal hears disputes between private parties or disputes between citizens and the state.
5.68      Given the policy arguments, we make no recommendation about whether the tribunals should have powers to award costs. We note, however, that the tribunals' power to award costs might need to be re-examined if our proposals for a unified system were accepted. One option might be for primary legislation to state that rules may provide for the tribunals to be able to make costs orders, as is the case for the Adjudicator under section 109 of the Land Registration Act. The Rules Committee, if one were set up as we propose,^[87] would be able to contribute to the proper approach to the costs powers of the PVT and the reformed Lands Tribunal.^[88]

Enforcement powers

5.69      Some consultees raised the issue of the enforcement powers of tribunals.^[89] A distinction must be drawn between the enforcement of case management directions and the enforcement of the tribunals' final orders. Case management directions are often enforced through costs orders. Under our proposals, the question of the tribunals ability to award costs would to a large extent be a matter for our proposed Rules Committee.^[90]
5.70      In the tribunal system as a whole, tribunals do not usually have the power to enforce their orders. Tribunal users usually have to at least obtain permission from the county court for the enforcement of orders.^[91] The enforcement powers of the county court include the power to grant warrants of execution, delivery and possession, power to make attachments of earnings orders and committal powers.^[92]
5.71      We do not think it would be appropriate for tribunals to have the power to make committal orders. However, it might be desirable for tribunals to have some enforcement powers so that users did not have to apply to the county court. There should be a consistent approach across the tribunal world as a whole, and within the confines of this project we are not able to consider the arguments about what enforcement powers tribunals should have. We recommend that the Government considers looking at issues relating to the enforcement powers of tribunals.

Note 1    Rent Act 1977, Sched 10, paras 1 - 5.    [Back]

Note 2    Agriculture Act 1947, Sched 9, paras 13 – 16.    [Back]

Note 3    Lands Tribunal Act 1949, s 2.    [Back]

Note 4    Leggatt report, paras 6.37 – 6.39.    [Back]

Note 5    Leggatt report, para 7.18. It is stated that “chairmen carry the greatest immediate burden arising from a tribunal’s distinctive functions” because they will be taking the lead in the “enabling approach”.    [Back]

Note 6    The regional structure is discussed at paras 5.2 – 5.4 above.     [Back]

Note 7    See paras 4.92 – 4.94 above.    [Back]

Note 8    The Government announced on 12 June 2003 that a new Independent Judicial Appointments Commission would be established to recommend candidates for appointment as judges. See press release “Modernising Government – Lord Falconer appointed Secretary of State for Constitutional Affairs” dated 12 June 2003, available on www.number-10.gov.uk. A consultation paper has recently been published on how the Commission could be established. This states that the Commission will be responsible for the full range of appointments currently made by the Lord Chancellor, including tribunal appointments. See Department of Constitutional Affairs, Constitutional Reform: a new way of appointing judges (July 2003), para 53.    [Back]

Note 9    The Management Board of the Valuation Tribunal Service was set up following a Financial Management and Policy Review in 1999. Note that the Valuation Tribunal Service is established as a non-departmental public body by the Local Government Bill, clauses 104 – 105 and Sched 4 (as amended on report in the House of Lords on 17 July 2003). Schedule 4(2) provides that this body will have a chairman and a deputy chairman.     [Back]

Note 10    Tribunals: their Organisation and Independence, Council on Tribunals (1997) Cm 3744.    [Back]

Note 11    Leggatt report, paras 6.38 and 7.13.    [Back]

Note 12    Leggatt report, paras 7.14 – 7.16.    [Back]

Note 13    Lands Tribunal Act 1949, s 2(2).    [Back]

Note 14    We have been told that in The Appeals Service, full-time members have a role in tribunal management, for example in the appraisal of part-time members.    [Back]

Note 15    Agriculture Act 1947, Sched 9 para 15. Nominations for the panels are made by bodies such as the National Farmers Union and the Country Landowners Association.     [Back]

Note 16    This panel system is somewhat analogous to the Appeals Service, in which there are four types of members, who have either a legal, medical, financial or disability qualification. See the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 35 and Sched 3. The primary legislation is the Social Security Act 1998, s 6(3). See further paras 7.34 – 7.35 below.     [Back]

Note 17    For example, in the RPTS tribunals, members are appointed without any statutory qualifications requirements. In the Lands Tribunal, Agricultural Land Tribunal and the Commons Commissioners, legal members must have a seven year general qualification as defined in the Courts and Legal Services Act. The Adjudicator must have a ten year general qualification.     [Back]

Note 18    The membership panels are discussed at paras 5.18 – 5.19 above.    [Back]

Note 19    See para 7.42 below.    [Back]

Note 20    SI 1996 No 1022.    [Back]

Note 21    The Lands Tribunal has jurisdiction in relation to the discharge or modification of restrictive covenants under the Law of Property Act 1925, s 84. The Lands Tribunal Rules 1996 (SI 1996 No 1022), r 14 requires the registrar to determine what notices need to be given to persons who appear to be entitled to the benefit of the restriction.     [Back]

Note 22    Cases in the Lands Tribunal can be allocated to either the special procedure, the standard procedure, the simplified procedure or the written representations procedure. See further the Lands Tribunal Rules 1996 (SI 1996 No 1022), rules 27 and 28 and Lands Tribunal Practice Direction 3.1, available at www.courtservice.gov.uk/tribunals/lands.     [Back]

Note 23    Lands Tribunal Rules 1996 (SI 1996 No 1022), r 38(1).     [Back]

Note 24    Lands Tribunal Rules 1996 (SI 1996 No 1022), r 52(2). The parties can appeal to the President under r 52(3).    [Back]

Note 25    Under the Rights of Light Act 1959, s 2 a landowner can apply to the local authority for registration of a notice that he intends to erect a structure that would be equivalent to the obstruction to the right of light for an adjacent landowner. A certificate of the Lands Tribunal must accompany the application to the local authority. Under the Lands Tribunal Rules 1996 (SI 1996 No 1022), r 22 the registrar shall determine what notices are to be given to persons who appear to have an interest in the dominant land.    [Back]

Note 26    See the Leggatt report, para 8.8.    [Back]

Note 27    Clerks are appointed under the Valuation and Community Charge Tribunal Regulations 1989 (SI 1989 No 439), reg 11. The enabling legislation is the Local Government Finance Act 1988, Sched 11 para 6(1)(a).    [Back]

Note 28    Leggatt report, paras 5.8 and 5.9, and more generally Chapter 5 as a whole.     [Back]

Note 29    This is discussed more fully in para 1.5 of this report.    [Back]

Note 30    See also Henry Brooke, “The future is arriving” (2002) 15 Journal of the Judicial Studies Board 11.     [Back]

Note 31    Tribunals and Inquiries Act 1992, s 8. The provision relates to tribunals listed in Sched 1 to the Act. All of the project tribunals within our terms of reference are so listed.    [Back]

Note 32    Council on Tribunals Model Rules of Procedure for Tribunals (1991) Cm 1434, as amended in February 2000, para 1. The Council on Tribunals latest model rules were published as a consultative draft in January 2003. The Council has told us that this will be called “Guide to Drafting Tribunal Rules” rather than “Model Rules of Procedure.”     [Back]

Note 33    The covering letter to the consultation on draft rules states that “the purpose was to provide a collection of precedents from which Tribunals and government departments could choose, when drafting or revising a Tribunal’s procedural rules or regulations.” The covering letter is available on www.council-on-tribunals.gov.uk. The fact that the Council on Tribunals aims to provide a guide to rule drafting rather than a complete set of tribunal rules is emphasised by the proposed new title for the Council’s next publication on the subject. See para 5.39, footnote 32 above.    [Back]

Note 34    Draft rule 31.    [Back]

Note 35    SI 1999 No 991.     [Back]

Note 36    See para 5.39 footnote 32 above.    [Back]

Note 37    Draft rules 5A and 5B.    [Back]

Note 38    Draft rules 14A and 14B.    [Back]

Note 39    This Committee was established by the Civil Procedure Act 1997, s 2.    [Back]

Note 40    Civil Procedure Act 1997, s 1.    [Back]

Note 41    Civil Procedure Act 1997, s 2.    [Back]

Note 42    Civil Procedure Act 1997, s 2(8).    [Back]

Note 43    This Committee was established by the Matrimonial and Family Proceedings Act 1984, s 40.    [Back]

Note 44    Matrimonial and Family Proceedings Act 1984, s 40(1).    [Back]

Note 45    Matrimonial and Family Proceedings Act 1984, s 40(1).    [Back]

Note 46    This Committee was established by the Magistrates’ Court Act 1984, s 144(1).    [Back]

Note 47    Magistrates’ Court Act 1984, ss 144(2) and 144(3).    [Back]

Note 48    Magistrates’ Court Act 1984, s 144(1).    [Back]

Note 49    This Committee was established by the Supreme Court Act 1981, s 86.    [Back]

Note 50    Supreme Court Act 1981, s 86(1).    [Back]

Note 51    Supreme Court Act 1981, s 86(1).    [Back]

Note 52    Note that under the Courts Bill, cl 69 there will be a new Criminal Procedure Rule Committee to make rules of court for the criminal courts. By cl 68, criminal courts are (a) the criminal division of the Court of Appeal; (b) when dealing with any criminal cause or matter (i) the Crown Court and (ii) a magistrates’ court. The Courts Bill was introduced in the House of Commons on 20 May 2003.     [Back]

Note 53    Insolvency Act 1986, s 413(3).    [Back]

Note 54    Land Registration Act 2002, s 127(2).    [Back]

Note 55    See para 5.43 above.    [Back]

Note 56    Land Registration Act 2002, s 127(1).    [Back]

Note 57    Land Registration Act 2002, s 132.    [Back]

Note 58    Charles Harpum and Janet Bignall, Registered Land The New Law (2002), p 223 footnote 11.    [Back]

Note 59    See paras 5.18 – 5.19.    [Back]

Note 60    Lands Tribunal Act 1949, s 3.    [Back]

Note 61    Commons Registration Act 1965, s 17(2).    [Back]

Note 62    Rent Act 1977, Sched 10, para 5.    [Back]

Note 63    Rent Act 1977, Sched 10, para 6.    [Back]

Note 64    Section 81A relates to the cancellation of the registration of rent.     [Back]

Note 65    Rent Act 1977, Sched 10, para 6A.    [Back]

Note 66    Valuation and Community Charge Regulations 1989 (SI 1989 No 439), reg 25.    [Back]

Note 67    Agriculture Act 1947, Sched 9, para 16.    [Back]

Note 68    Section 7.    [Back]

Note 69    This panel of members is constituted under the Social Security Act 1998, s 6 which provides for a panel of persons to be constituted by the Lord Chancellor to act as members of appeal tribunals.     [Back]

Note 70    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 36.    [Back]

Note 71    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 36(1).    [Back]

Note 72    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 36(2).    [Back]

Note 73    The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991), reg 36(3).    [Back]

Note 74    This is discussed in more detail in para 7.39 below.    [Back]

Note 75    See paras 5.20 – 5.25 for a discussion of member specialisms.    [Back]

Note 76    For example, a dispute under the Council Tax (Alteration of Lists and Appeals) Regulations 1993 (SI 1993 No 290), reg 13 that a proposal to alter the valuation list is not well-founded.    [Back]

Note 77    See para 4.43 above.    [Back]

Note 78    Quoted from the Lands Tribunal website at www.courtservice.gov.uk/tribunals/lands.    [Back]

Note 79    LT ref LCA/139/2001.    [Back]

Note 80    See also para 4.43.    [Back]

Note 81    The Lands Tribunal told us in their consultation response that although the Lands Tribunal sits locally where necessary and can hear cases under the simplified procedure, “it may nevertheless sometimes be perceived, as a London-based tribunal known for dealing with major cases, as somewhat remote and formidable.”    [Back]

Note 82    These rules might be similar to CPR 3.3, which sets out the court’s power to make an order of its own initiative as well as on an application.     [Back]

Note 83    Leggatt report, para 8.22.    [Back]

Note 84    The Independent Housing Ombudsman scheme was established by the Housing Act 1996, s 51 and Sched 2. The scheme aims to provide a means of investigation and redress for tenants of social landlords, and offers a range of ADR services. Further information is available at www.ihos.org.uk.    [Back]

Note 85    The Lands Tribunal (Fees ) Rules (SI 1996 No 1021) (as amended by the Lands Tribunal (Fees) (Amendment) Rules 2002 (SI 2002 No 270)) set out the fee structure in the Lands Tribunal. The Commonhold and Leasehold Reform Act 2002, Sched 12 para 9 makes provision for regulations requiring the payment of fees in certain cases before the Leasehold Valuation Tribunal, such fees not to exceed £500 or such other amount as is specified in the regulations. The Land Registration Act 2002, s 113 makes provision for regulations prescribing fees to be paid in respect of proceedings before the Adjudicator. No regulations have yet been made. No fees are charged by the remaining project tribunals.    [Back]

Note 86    The Lands Tribunal has power to make orders for costs under the Lands Tribunal Act 1949, s 3(5). These powers are constrained by other enactments. The Land Compensation Act 1961, s 4(1) constrains the Lands Tribunal’s powers to award costs in cases of disputed compensation for the compulsory purchase of land where the acquiring authority has made an offer of compensation or the claimant has offered to accept a particular sum as compensation. The Commonhold and Leasehold Reform Act 2002, s 175(6), states that in appeals from the Leasehold Valuation Tribunal, the Lands Tribunal may not award costs unless it is of the opinion that a party has acted unreasonably. The Lands Tribunal’s costs regime is different in cases heard under its simplified procedure. The Commonhold and Leasehold Reform Act 2002, Sched 12 para 10 also restricts the power of Leasehold Valuation Tribunals to award costs only when it is of the opinion that a party has acted unreasonably. The Land Registration Act 2002, s 109(3), expressly provides that the Adjudicator’s procedural rules may make provision for payment of costs. The remainder of the project tribunals do not have the power to award costs.    [Back]

Note 87    See paras 5.42 – 5.46 above.    [Back]

Note 88    Provided primary legislation contained a power enabling regulations to make provision for the award of costs. See as an example the Employment Tribunals Act 1996, s 13(1)(a) or the Land Registration Act 2002, s 109.    [Back]

Note 89    For example, the Residential Property Tribunal Service.    [Back]

Note 90    See paras 5.42 – 5.46 above.    [Back]

Note 91    See, for example, the Lands Tribunal Rules 1996 (SI 1996 No 1022), reg 32, applying the provisions of the Arbitration Act, s 66 to proceedings in the Lands Tribunal. Section 66 states that an award made pursuant to an arbitration agreement may, by leave (now called permission) of the court, be enforced in the same manner as a judgment or order of the court to the same effect. See also the Commonhold and Leasehold Reform Act 2002, Sched 12 para 11 which states that procedure regulations may provide for decisions of Leasehold Valuation Tribunals to be enforceable, with the permission of the county court, in the same way as orders of such a court. No such procedure regulations have yet been made. Note the slightly different provision in the Land Registration Act 2002, s 112 which states that “ a requirement of the adjudicator shall be enforceable as an order of the court.”    [Back]

Note 92    CPR Sched 2 CCR Ord 25, 26, 27 and 29, incorporated into the Civil Procedure Rules by virtue of CPR 50.     [Back]