The Law Commission

PART VI

JURISDICTIONAL ISSUES

Introduction

6.1      The Leggatt report concluded that there appeared to be confusing overlaps of jurisdiction between the courts and the project tribunals. The report's concern was that overlaps of jurisdiction could be confusing for tribunal users and could provide the opportunity for forum shopping.^[1] On this basis, we conducted a preliminary review of the jurisdictional relationships between the courts and the project tribunals in our consultation paper. We asked for information from consultees about whether the areas of overlap we identified were problematic in practice.^[2] We are particularly grateful to consultees for their helpful assistance in identifying potentially difficult areas of jurisdictional overlap.
6.2      There was a general recognition among consultees that there are some jurisdictional overlaps between the courts and the project tribunals, but consultees did not note any of these to be greatly problematic in practice.^[3] No responses identified problematic overlaps between the project tribunals themselves. One area of overlap was noted between the Lands Tribunal and the tax tribunals.^[4]
6.3      The specific areas of overlap noted by consultees are discussed at paragraphs 6.4 – 6.56 below in relation to each of the project tribunals. In the main these are relatively minor issues which do not arise frequently. A general issue of some importance is the close relationship between dispute resolution in the Leasehold Valuation Tribunal and the county courts. We consider that any difficulties that arise from this close relationship can be dealt with by way of case management powers. This is discussed at paragraphs 6.59 – 6.65 below. We also consider in paragraphs 6.67 – 6.73 some wider issues relating to the resolution of housing disputes.

Individual areas of jurisdictional overlap

6.4      We discuss here the areas of jurisdictional overlap that were noted by consultees as being potentially problematic, in relation to each of the project tribunals.

Leasehold Valuation Tribunal

6.5      Of the eight project tribunals, it is the Leasehold Valuation Tribunal which has had the closest relationship with the county court. It is therefore in the Leasehold Valuation Tribunal that problems with overlapping jurisdictions have been most likely to occur. Difficulties have historically arisen in relation to the Leasehold Valuation Tribunal's service charge jurisdiction, which, we were told, caused problems for tribunal users. These problems have now been resolved by the Commonhold and Leasehold Reform Act 2002. This is discussed at paragraphs 6.7 – 6.11 below.
6.6      The remaining potentially difficult issues relate to jurisdictions which we termed in our consultation paper "interlocking" jurisdictions. This is where the Leasehold Valuation Tribunal and the county court determine separate but closely related matters relating to one dispute. For example, under section 20 of the Leasehold Reform Act 1967, county courts have jurisdiction to determine a tenant's entitlement to acquire the freehold in leasehold enfranchisement cases. Under section 21 of the Act, the Leasehold Valuation Tribunal has jurisdiction to determine disputes in relation to the amount payable for the freehold so acquired. A potential problem relating to interlocking jurisdictions also arise in the Rent Assessment Committee. Any problems that have arisen have not, however, been noted as difficulties that occur frequently.

Service charge jurisdictions

6.7      The overlap between the Leasehold Valuation Tribunal and the county court in service charge cases has historically caused the greatest difficulties for users in practice. The difficulties stemmed from the Leasehold Valuation Tribunal's jurisdiction under sections 19(2A) and 19(2B) of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs underlying a service charge.^[5] Such difficulties are now academic as the Leasehold Valuation Tribunal has been given a broad jurisdiction to hear all aspects of service charge disputes under the Commonhold and Leasehold Reform Act 2002.
6.8      Difficulties arose because of the limited nature of the Leasehold Valuation Tribunal's service charge jurisdiction. The jurisdiction did not extend to questions of liability to pay service charge, only to its reasonableness. The case of Gilge v Charlesgrove Securities Ltd^[6] illustrates the limited nature of the Leasehold Valuation Tribunal's service charge jurisdiction.^[7] Because of doubts about the Leasehold Valuation Tribunal's proper jurisdiction, the case was heard concurrently as proceedings of the county court and an appeal from the Leasehold Valuation Tribunal to the Lands Tribunal.^[8] The case concerned tenants being charged the rent for the flat of a resident caretaker as service charge. One of the issues was whether this rent was recoverable under the service charge provisions of the lease. It was decided in the Lands Tribunal proceedings that the Leasehold Valuation Tribunal's proper jurisdiction was to determine whether the cost of the caretaker's rent was reasonably incurred and not to determine whether, on a proper construction of the lease, the tenants were liable to pay the caretaker's rent as service charge.
6.9      The problems of a limited service charge jurisdiction were exacerbated by Daejan v London Leasehold Valuation Tribunal.^[9] In this case the landlord and tenants were in dispute about the amount of service charge, but the tenants had paid the service charge because of their concerns about the forfeiture of the lease. The Court of Appeal decided that Leasehold Valuation Tribunals had no jurisdiction to decide cases in respect of service charges that had already been paid. This further limited the service charge jurisdiction of the Leasehold Valuation Tribunal. ^[10]
6.10      The Commonhold and Leasehold Reform Act 2002^[11] remedies this problem. The Act repeals section 19(2A) and section 19(2B) of the Landlord and Tenant Act 1985 and inserts a new section 27A which contains a broader jurisdiction for the Leasehold Valuation Tribunal. When it is in force, section 27A will allow Leasehold Valuation Tribunals to decide whether a service charge is or would be payable and other aspects of service charge liability.^[12] Section 27(A)(2) confirms that the Leasehold Valuation Tribunal has jurisdiction whether or not payment has been made, thus nullifying the problem raised by Daejan v London Leasehold Valuation Tribunal.^[13] This jurisdiction will be parallel to that of the county court^[14] but this seems sensible, given that the county court may need to consider service charge issues in the context of wider landlord and tenant disputes.
6.11      Our opinion is that the new section 27A will solve the problems noted above. We therefore make no recommendations.

Enfranchisement and new leasehold jurisdictions

6.12      Legislation provides for leaseholders to be able, in certain circumstances, to buy the freehold of their property or to extend their leases under statutory procedures. The Leasehold Reform Act 1967 facilitates the acquisition by leaseholders of the freehold of houses and the extension of leases of houses owned under certain long leases. The Leasehold Reform, Housing and Urban Development Act 1993^[15] facilitates collective enfranchisement of flats by leaseholders and the acquisition of individual qualifying leaseholders of new leases. Under the Landlord and Tenant Act 1987, leaseholders also have the right of first refusal on the disposal by the landlord of any estate or interest in the premises. The Leasehold Valuation Tribunal and the county courts each have jurisdiction over certain types of disputes relating to these enfranchisement and new lease cases. There are potentially some problems relating to this "interlocking" jurisdiction.^[16]
6.13      One area of overlap which was raised in response to consultation is that which arose in the case of Ellis v Logothetis.^[17] Problems arose in that case because proceedings were started both in the Leasehold Valuation Tribunal and in the county court. The tenant commenced proceedings to obtain a new lease of her flat under the Leasehold Reform, Housing and Urban Development Act 1993. By section 48(1) of the Act, when any of the terms of the acquisition of the lease remain in dispute after the expiry of a certain time period, the Leasehold Valuation Tribunal has jurisdiction to determine the matters in dispute. The tenant applied to the Leasehold Valuation Tribunal under section 48(1). By section 48(3) of the Act, when all the terms of the acquisition of the lease have been agreed or determined by a Leasehold Valuation Tribunal under section 48(1), but a new lease has not been entered into, the county court can make an order with respect to the performance or discharge of the parties' obligations.^[18] The tenant also applied to the county court under section 48(3) for an order for a new lease.
6.14      The county court and the Leasehold Valuation Tribunal each decided the issues before them. The court's decision was dated 29 June 1999 and the Leasehold Valuation Tribunal's decision 29 November 1999. The two decisions were not consistent with each other. The county court held that the parties had not at any time reached any final agreement on the terms of acquisition. The Leasehold Valuation Tribunal held that there had been final agreement on all terms except the premium. On appeal from the Leasehold Valuation Tribunal, the Lands Tribunal held that the decision of the county court created an issue estoppel that bound the Leasehold Valuation Tribunal.^[19] The question of whether or not all the terms of the acquisition had been agreed was decided in the county court and could not be re-argued before the Leasehold Valuation Tribunal.
6.15      This difficulty in Ellis v Logothetis^[20] is not one that should arise often. The two procedures in section 48 are designed to be complementary and mutually exclusive. As noted by the Lands Tribunal in the case, the Leasehold Valuation Tribunal only has jurisdiction where there are terms that have not been agreed and the county court only has jurisdiction where the terms have been agreed or determined by the Leasehold Valuation Tribunal. So long as there are terms still in dispute, the Leasehold Valuation Tribunal has jurisdiction. When all terms have been agreed or determined by the Leasehold Valuation Tribunal, the county court has jurisdiction. If a similar situation to the case did arise, issue estoppel could be brought into play.
6.16      A similar division of jurisdiction between the Leasehold Valuation Tribunal and the county court exists in relation to applications for collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. Under section 24(1), if any of the terms of acquisition remain in dispute for two months after the relevant counter-notice has been served, it is within the jurisdiction of the Leasehold Valuation Tribunal to decide the terms in dispute. By section 24(3), where all the terms of acquisition have been either agreed between the parties or determined by the Leasehold Valuation Tribunal, but a binding contract has not been entered into incorporating those terms within a specified time period, the court then has jurisdiction to make an appropriate order. In Penman v Upavon Enterprises Ltd,^[21] the Court of Appeal noted that the court's jurisdiction to make an order only arose once all the terms of the acquisition had been either agreed or determined by the Leasehold Valuation Tribunal.^[22]
6.17      The Residential Property Tribunal Service commented in their response to our consultation that it may be confusing for parties that different types of application must be made to different forums in leasehold enfranchisement and new lease cases. The Residential Property Tribunal Service say, however, that although in practice there are occasions when applications must be adjourned pending a county court decision on an issue, the difficulties are not acute. These matters have not been noted to be problematic by tribunal users. Given that there are no major difficulties in practice and the system works well as a whole in practical terms, we do not recommend the transfer of any aspects of these disputes either to the courts or to the RPTS tribunals. We do think it is important, however, that appropriate tools are in place to resolve any difficulties that can occasionally arise. We discuss this further at paragraphs 6.59 – 6.65 below.

New right to manage jurisdiction

6.18      A similar type of interlocking jurisdiction between the county court and the Leasehold Valuation Tribunal is apparent in the new Right to Manage jurisdiction to be introduced under the Commonhold and Leasehold Reform Act 2002.^[23]
6.19      This right allows leaseholders of flats to take over the management of the buildings in which their flat is situated without having to prove any fault on the part of their landlord. This is the first time leaseholders have had this right. The legislation provides that the leaseholders are to exercise the right through an "RTM Company", that is a Right to Manage Company. The RTM Company must give notice inviting qualifying tenants who are not members of the company to participate. It must then give a "claim notice" to the landlord and other parties specified in the legislation. A person given a claim notice may serve a counter-notice admitting or denying the right to manage. If the counter-notice alleges that the RTM company is not entitled to exercise the right, the RTM company may apply to the Leasehold Valuation Tribunal.
6.20      The Act confers jurisdiction on both the Leasehold Valuation Tribunal and the county court in respect of the right to manage. The Leasehold Valuation Tribunal has the following jurisdictions:

(1) determination of entitlement of right to manage,^[24]

(2) order where landlord not traceable,^[25]

(3) determination in relation to costs,^[26]

(4) determination of accrued uncommitted service charges^[27] and

(5) determination of objection to approval.^[28]

6.21      The county court has power to make an order requiring a person who has failed to comply with a requirement imposed on him relating to the Right to Manage to make good the default.^[29]
6.22      There does not seem to be any direct overlap between the jurisdictions of the Leasehold Valuation Tribunal and the county court as none of the Leasehold Valuation Tribunal jurisdictions relate to obligations under the Act. This is, however, another example of interlocking jurisdictions. The Residential Property Tribunal Service said in their consultation response that "it is possible that the divide of jurisdictions between the county court and the Leasehold Valuation Tribunal in the new Right to Manage cases may cause some initial confusion."
6.23      As with the enfranchisement cases, we think that the proper legal tools being available to deal with any such confusion should mean that initial difficulties do not inconvenience tribunals users to too great an extent.

Issue estoppel

6.24      Issue estoppel is one of the tools that has been used to overcome jurisdictional overlap problems. Issue estoppel is a common law doctrine, the effect of which is essentially that issues which have been judicially decided cannot then be re-litigated by the same parties. Issue estoppel arises "where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided."^[30] The requirements for issue estoppel are summarised by the Lands Tribunal in Ellis v Logothetis.^[31] They are that:

(1) The same question has been decided.

(2) The judicial decision which is said to create the estoppel is final.

(3) The parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel was raised.

6.25      Issue estoppel was used by the Lands Tribunal in Ellis v Logothetis^[32] to prevent the Leasehold Valuation Tribunal making an inconsistent decision to the county court when both forums were seised of the case. The Lands Tribunal decided that the question of whether or not all the terms of the acquisition of the new lease had been agreed were decided in the county court and could not be re-argued before the Leasehold Valuation Tribunal.
6.26      Issue estoppel applies generally between courts and tribunals. For example, in Crown Estate Commissioners v Dorset County Council,^[33] estoppel was said to apply in relation to a decision of the Commons Commissioners. The Commons Commissioners had decided that certain road verges were part of the highway and not common land. In a subsequent court action the Crown Estate Commissioners sought to claim that the verges had never been dedicated as highway. The court held that subject to the principles that a tribunal of limited jurisdiction could not conclusively determine the limits of its own jurisdiction, the decision of an inferior tribunal with a limited jurisdiction and a strictly limited function to perform was capable of creating an issue estoppel. The Crown Estate Commissioners were therefore estopped from asserting that the road verges were not part of the highway by the Commons Commissioners' decision.

Case management powers

6.27      Under the Commonhold and Leasehold Reform Act 2002, the courts have power to transfer proceedings to the Leasehold Valuation Tribunal where necessary. The Act provides that where, in any proceedings before a court, there falls for determination a question falling within the jurisdiction of the Leasehold Valuation Tribunal, the court may by order transfer to the Leasehold Valuation Tribunal so much of the proceedings as relates to the determination of that question.^[34] The court can either then dispose of the rest of the proceedings or adjourn the disposal of all or any remaining proceedings as relate to the determination of that question by the Leasehold Valuation Tribunal.^[35] When the Leasehold Valuation Tribunal has determined the question, the court may give effect to that determination in an order of the court. Provision is made for procedural regulations prescribing the procedure to be followed in a Leasehold Valuation Tribunal if the court transfers a question to it in this way, as well as for rules of court prescribing the procedure to the followed in court in connection with the transfer.
6.28      There is no power for the Leasehold Valuation Tribunal to refer cases to the courts. Leasehold Valuation Tribunals do, however, have power to postpone or adjourn hearings of their own motion or at the request of the parties. They are not allowed to do so at the request of one party only unless they consider it reasonable to do so, having regard to the grounds on which that request is made and the time at which the request is made and the convenience of the parties.^[36] These powers allow Leasehold Valuation Tribunals to adjourn proceedings if parties need to make an application to the county court for an issue that is not within the jurisdiction of the Leasehold Valuation Tribunal.
6.29      We consider at paragraphs 6.59 – 6.65 below whether any extension might be needed to these powers.

Rent Assessment Committee

Overlaps with county court

6.30      Rent Assessment Committees essentially hear appeals from decisions of the rent officer relating to fair rents for regulated tenancies under the Rent Act 1977^[37] and decide cases about open market rents for assured and assured shorthold tenancies in certain circumstances under the Housing Act 1988.^[38] The Residential Property Tribunal Service noted that there can be difficulties with overlapping jurisdictions in cases in which the status of a tenant may be in dispute.
6.31      While the Rent Assessment Committee has power to determine fair rents for Rent Act tenancies, it is only the county court that can make a determination on whether a tenant is in fact a Rent Act tenant.^[39] The Rent Assessment Committee may therefore sometimes have to adjourn its determination on fair rent pending an application to the county court for adjudication on this issue. In Housing Act cases too, a binding determination on status can only be given by the county court.^[40] There can therefore be a tension between the parties' desire for a binding determination on status by the county court, and the Rent Assessment Committee's determination of the rent.

Case management powers

6.32      This overlap with the courts is not said to be a major problem, and we think that case management powers should assist in resolving any difficulties that do arise in practice. The Rent Assessment Committee has power to adjourn its proceedings pending the outcome of any county court proceedings.^[41] The court and the committee are prevented in any case from making incompatible decisions by issue estoppel.^[42] Possible extensions to case management powers are discussed at paragraphs 6.59 – 6.65 below.

Rent Tribunal

6.33      The Rent Tribunals rarely sit in practice and therefore any overlap is of little practical importance. This has been confirmed by the Residential Property Tribunal Service. We therefore make no recommendations about any jurisdictional overlaps relating to the Rent Tribunals.

Lands Tribunal

Compensation and damages in tort

6.34      A person with an interest in land that is "injuriously affected" by the execution of works carried out by an acquiring authority is entitled to be compensated for the loss suffered. The Lands Tribunal has jurisdiction under section 10(1) of the Compulsory Purchase Act 1965 to determine any dispute that arises in relation to the compensation payable in respect of an injurious affection.
6.35      In our consultation paper, we referred to the Law Commission consultation paper on compulsory purchase.^[43] In the compulsory purchase consultation paper, a potential overlap was noted resulting from the fact that compensation for injurious affection under section 10 of the Compulsory Purchase Act 1965 can only be claimed in respect of the lawful actions of the acquiring authority. If the authority has acted negligently, the correct claim is in tort to the High Court.^[44] This may in some cases lead to doubt about the correct forum for a claim.
6.36      In Chapelwood Estates Ltd v City Greenwich Lewisham Rail Link plc,^[45] land was damaged during tunnelling operations for a railway link extending the Docklands Light Railway. Proceedings were started both in the High Court for damages and in the Lands Tribunal for compensation, but the parties settled the case before either hearing could take place, with costs to be ascertained by the Lands Tribunal. If the parties had not settled, this could have resulted in two hearings, with the possibility of conflicting outcomes.
6.37      Consultation Paper No 165 proposed that the Lands Tribunal should have jurisdiction to determine any claim, whether common law or statutory, relating to damage to land or the use of land, where it arises out of substantially the same facts as a compensation claim which has been referred to the Lands Tribunal.^[46] We repeat this recommendation.

Taxation disputes

6.38      Conflicts have arisen in capital gains tax cases concerning exempt and non-exempt parts of consideration for the sale of land which include a private residence. This is a type of interlocking jurisdiction between the Lands Tribunal and either the General or Special Commissioners of Income Tax. If there is a dispute as to the method of apportionment of the land for tax purposes, the correct forum is the General or Special Commissioners. If the dispute is as to the values of the apportioned parts of land, the correct forum is the Lands Tribunal.^[47] This can raise the issues of which forum the parties should go to first. The Lands Tribunal has told us that in practice the number of cases heard under this jurisdiction is very small.^[48]
6.39      The determination of land valuation disputes in the context of tax appeals has been mentioned in the Tax Appeals Tribunals consultation paper.^[49] That consultation paper noted that capital gains tax appeals involving a question of the value of land in the UK have to be referred to the Lands Tribunal. By contrast, non-capital gains tax appeals involving disputes over the valuation of land (with a couple of exceptions),^[50] or capital gains tax appeals involving the valuation of land outside the UK are heard by the General or Special Commissioners. The tax tribunals consultation paper queried whether it would be more sensible for all appeals involving a dispute over the valuation of land, regardless of the type of tax involved, to be referred to the tax tribunals.^[51] In other words, it suggested removing this jurisdiction from the Lands Tribunal.
6.40      Responses to our consultation paper did not specify whether they considered this jurisdiction should be allocated to the tax tribunals or remain in the Lands Tribunal. In the light of the wider consultation of the Tax Appeals Tribunals project with those experienced in the working of tax tribunals, we make no recommendation in this area.

Arbitration jurisdiction

6.41      Parties to a non-domestic rating appeal can theoretically apply directly to the Lands Tribunal by referring the issue to arbitration, rather than the appeal being heard first by the Valuation Tribunal and then appealed to the Lands Tribunal. The parties may agree to refer the question to arbitration under the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations^[52] and then agree to appoint the Lands Tribunal as the arbitrator under section 1(5) of the Lands Tribunal Act 1949. It has been said that "this power can be a convenient one in cases which the parties intend from the outset to take before the Lands Tribunal, as it saves both the time and the expense of a hearing before the Valuation Tribunal."^[53] This is borne out by earlier cases which have been referred to the Lands Tribunal for arbitration. For example, in Leeds University v City of Leeds and Burge (V.O.),^[54] the case was referred directly to the Lands Tribunal by way of arbitration^[55] and it was agreed that the Lands Tribunal hearing would be conducted as if it were an appeal from the local valuation courts (as the Valuation Tribunals then were). This looks like a type of "leapfrogging" from the first tier tribunal direct to the Lands Tribunal. This case concerned the ratings value of the main university site and other buildings owned by Leeds University, and the large amount of property concerned may have been the reason why the case was referred directly to the Lands Tribunal.^[56]
6.42      Although this procedure has been used in the past, we have been told that it is now hardly used in practice. The National President of the National Association of Valuation Tribunals said that "to our knowledge this provision has never been used." He gave as the reason for this that the parties welcome an inexpensive first tier tribunal. He suggested that in the past, Valuation Tribunal hearings were used by the parties to prepare for the hearing before the Lands Tribunal but now that there has been an increase in the quality of decisions many complex cases are determined by the Valuation Tribunal without further appeal.
6.43      In our proposed structure, it would be possible to transfer complex cases from the PVT to the reformed Lands Tribunal where appropriate. There should be no need for parties to attempt to circumvent the first tier hearing by this arbitration route. It would not be desirable to take away the Lands Tribunal's arbitration jurisdiction or the right of Valuation Tribunal users to have their case resolved by arbitration if they wish to do so. We therefore make no recommendations in relation to any jurisdictional overlap caused by the possibility of Valuation Tribunal cases being decided by arbitration in the Lands Tribunal.

Adjudicator to HM Land Registry

Overlaps with High Court

6.44      The jurisdiction of the Adjudicator overlaps that of the High Court in that the Adjudicator has power to make any order the High Court could make for the rectification or setting aside of certain documents.^[57] The documents which the Adjudicator can rectify or set aside are documents which affect a qualifying disposition^[58] of a registered charge or estate in land; contracts to make such a disposition; or documents that effect a transfer of an interest which is the subject of a notice in the register.^[59] An order of the Adjudicator operates under the same general law and has the same effects as an order of the High Court.^[60]
6.45      We think that these overlaps are sensible and helpful to tribunal users. The Law Commission report leading to the Land Registration Act 2002, stated that "under the present law, the registrar has no power to rectify or set aside a document. On occasions this has meant that he has had to refer a matter to the High Court that he could otherwise have resolved. To avoid the cost and delay that such a reference is likely to entail, it was considered appropriate that the Adjudicator should have a limited power to rectify and set aside conveyancing (but not other) documents." ^[61]
6.46      The Adjudicator also has power to make the same orders as the High Court in certain adverse possession cases. Under the Land Registration Act 2002, a person can apply to be registered as the proprietor of a registered estate in land if he or she has been in adverse possession for ten years.^[62] The Act allows the registered proprietor of the land to object to this application.^[63] The Adjudicator can determine the dispute if the Land Registry registrar is unable to dispose of it by agreement.^[64] In this case, if the Adjudicator finds that an equity of estoppel^[65] has arisen, but that the squatter should not in the circumstances be registered as registered proprietor, the Adjudicator must determine how the equity due to the applicant should be satisfied.^[66] For that purpose the Adjudicator can make any order that the High Court could make in the exercise of its equitable jurisdiction.^[67] We think this is a power that the Adjudicator properly needs to determine these cases.

Case management powers

6.47      Any problems that did arise because of overlapping jurisdictions could be dealt with by case management powers. The Land Registration Act 2002 envisages that the Adjudicator will refer some cases to the courts. Section 110 allows the Adjudicator, in a dispute relating to an objection to a registration application,^[68] to direct a party to start proceedings in court instead. The Law Commission has explained that one reason these powers might be used by the Adjudicator is if there are other issues between the parties already before the court.^[69]
6.48      Draft rules make provision for the adjournment of proceedings before the Adjudicator following such a direction and for the Adjudicator to close the proceedings (or that part of the proceedings which was referred to the court) without making a substantive decision once he has been informed of the court's decision.^[70]
6.49      Draft rules also state that if parties have commenced proceedings in the courts other than on a direction of the Adjudicator, they must serve a notice on the Adjudicator providing him with information about the court proceedings. Notice must also be served on the Adjudicator of the court's final decision and on the court of any substantive decision of the Adjudicator on the matter.^[71]
6.50      We think this power to refer cases to the court is a useful one in the context of jurisdictional overlaps between courts and tribunals, and that a similar rule could be used in our proposed PVT and reformed Lands Tribunal. We discuss this further at paragraph 6.61 below.

Agricultural Land Tribunal

6.51      Consultees did not alert us to any major jurisdictional overlaps between the courts and the Agricultural Land Tribunals. A Chairman of the Agricultural Land Tribunal said in his consultation response that "the tenancy succession, bad husbandry and land drainage jurisdictions of the Agricultural Land Tribunal do not present any obvious problems of overlap. There is really no opportunity for forum shopping which is clearly the mischief to which Leggatt believes overlap gives rise."
6.52      Consultees did alert us to one relatively minor area in which the overall system of agricultural dispute resolution causes difficulties. This is the relationship between Agricultural Land Tribunals and agricultural arbitrators under section 28 of the Agricultural Holdings Act 1986. The Act makes provision for a landlord to give notice to quit to the tenant of an agricultural holding and to state that the notice is being given by reason of the tenant's failure to comply with a previous notice to remedy a breach of the tenancy.^[72] The tenant can serve a counter-notice, with the result that the notice to quit will not have effect without the consent of the Agricultural Land Tribunal.^[73] The Act also states that the tenant can serve on the landlord a notice requiring the validity of the reason stated in the notice to quit to be determined by arbitration.^[74] If so, any counter-notice already served is of no effect but the tenant may serve another counter-notice after the arbitration.^[75] The tenant therefore has two possible courses of action. Scammell and Densham's Law of Agricultural Holdings comments that the landlord's original notice to remedy "can set off a chain reaction which is very costly and difficult to control." ^[76]
6.53      The problem referred to here does not appear to stem from difficulties with jurisdictional overlaps, but rather from a complex set of procedures which would perhaps need to be looked at in the context of agricultural dispute resolution mechanisms as a whole. We therefore make no recommendations on this point.
6.54      We noted in our consultation paper the relationship between the Agricultural Land Tribunals and other mechanisms of dispute resolution in relation to agricultural land, especially arbitration.^[77] Although there are a number of different mechanisms for the resolution of agricultural disputes, no jurisdictional problems arise as a result. The dispute resolution mechanisms are completely separate. Broadly speaking, if an agricultural tenancy was created before 1 September 1995, the Agricultural Land Tribunal will be the correct forum. If the tenancy was created on or after this date, arbitration will be the correct dispute resolution mechanism under the Agricultural Tenancies Act 1995. Different rules apply for tenancies of dwelling houses, when the dispute will be heard either by the Rent Assessment Committee, the county court or the High Court. Any issues of overlap in relation to agricultural dwelling houses are the same as those already noted in relation to the RPTS tribunals.

Valuation Tribunal

6.55      We noted in Part IV some differences in the dispute resolution mechanisms used to hear disputes relating to local government finance. Disputes as to the contents of non-domestic rating valuation lists are heard by the Valuation Tribunal with appeal to the Lands Tribunal, whereas disputes as to liability are heard by the magistrates' courts^[78] with appeal to the High Court. This can be contrasted with council tax, where disputes both as to the contents of valuation lists and as to liability^[79] are heard by the Valuation Tribunal, with a right of appeal on a point of law to the High Court.^[80] Proposed provisions in the Local Government Bill^[81] would mean that non-compliance with a statutory notice requesting information from a ratepayer about rental values might give rise to a civil penalty to be imposed by the valuation officer with an appeal to the Valuation Tribunal. This would replace the current criminal sanction imposed by the magistrates' courts.^[82]
6.56      We think that these issues would best be examined in the context of a Government review of local government finance adjudication. In Part IV we recommended that the Government should consider setting up such a review.

Action on jurisdictional overlaps

General conclusions

6.57      Although consultees noted a number of areas in which jurisdictional overlaps could arise in the relation to the project tribunals, none of these were said to be greatly problematic in practice. We have repeated an earlier Law Commission recommendation in relation to the Lands Tribunal^[83] and have recommended that the Government consider examining the overall scheme of local government finance adjudication including certain aspects of the Valuation Tribunals.^[84] One of the main problem areas in the past was the differing jurisdictions for the resolution of service charge disputes.^[85] These difficulties have been recognised by parliament and a solution enacted in the Commonhold and Leasehold Reform Act 2002.^[86]
6.58      There is undoubtedly a close relationship between the disputes decided in the Leasehold Valuation Tribunal and some of those decided in the county court. In a number of areas, the Leasehold Valuation Tribunal either has concurrent jurisdiction with the county court or there is a type of interlocking jurisdiction. However, as these have only caused occasional difficulties in cases before the tribunal and the system works satisfactorily in the majority of cases, we do not recommend that jurisdictions be transferred from the county court to the Leasehold Valuation Tribunal or vice versa. We think that the occasional difficulty in these jurisdictions can be appropriately resolved by good case management powers.^[87] If our proposals for a unified PVT and reformed Lands Tribunal are accepted by the Government, it may be that more jurisdictions, including some currently exercised by the courts, could be transferred to these tribunals in the future.

Case management powers

6.59      We think that our proposed PVT and reformed Lands Tribunal should have a full set of case management powers. The basis of these powers should be contained in primary legislation with the detailed rules in secondary legislation. Powers should enable the courts to refer cases or parts of cases to the tribunals where appropriate, and likewise for the tribunals to be able to refer cases or parts of cases to the courts.
6.60      The power for the courts to refer cases to the tribunals could be similar to the power in Schedule 12 of the Commonhold and Leasehold Reform Act 2002. This gives the courts power to transfer cases or parts of cases to the Leasehold Valuation Tribunal. The relevant provisions can be summarised as follows.

(1) Where, in court proceedings, a question arises which is within the Leasehold Valuation Tribunal's jurisdiction, the court can transfer to the Leasehold Valuation Tribunal the part of the proceedings which is within the tribunal's jurisdiction.^[88]

(2) The court can then either dispose of all or the remaining proceedings, or adjourn the court proceedings pending the Leasehold Valuation Tribunal's decision. This is within the discretion of the court.^[89]

(3) When the Leasehold Valuation Tribunal has determined the question before it, the court may give effect to the tribunal's determination by way of court order.^[90]

(4) There is provision for rules of court and procedure regulations to prescribe the procedures to be followed in the court and the Leasehold Valuation Tribunal respectively in connection with a transfer.^[91] No rules or regulations have yet been made.

6.61      The power for tribunals to refer cases to the courts could be similar to the power in section 110 of the Land Registration Act 2002. This allows the Adjudicator to direct parties to commence proceedings in the court instead of the Adjudicator deciding a matter himself.^[92] The relevant provisions can be summarised as follows.

(1) In certain proceedings before the tribunal, the Adjudicator may, instead of deciding a matter himself, direct a party to commence proceedings before the court within a specified time.^[93]

(2) There is power for rules to be made to make further provision about this reference to the courts, in particular about adjournment of proceedings before the Adjudicator pending the court's decision and powers of the Adjudicator if the parties fail to comply with his direction.^[94]

6.62      No rules have yet been made. Draft procedural rules provide for the adjournment of proceedings before the Adjudicator following a referral to the court, and for the Adjudicator to close the proceedings before him (or that part of the proceedings which was referred to the court) without making a substantive decision once he has been informed of the court's decision.^[95]
6.63      These draft rules also state that if the parties have commenced proceedings in the courts other than on a direction of the Adjudicator, they must serve a notice on the Adjudicator providing him with information about the court proceedings. Notice must also be served on the Adjudicator of the court's final decision and on the court of any substantive decision of the Adjudicator on the matter.^[96]
6.64      The power to refer cases between the courts and tribunals exists in other territorial jurisdictions. The Residential Tribunal of New South Wales can transfer proceedings to the courts, and the courts can transfer matters to the tribunal.^[97] Proceedings can be transferred if all the parties agree, or if the court or tribunal of its own motion or on the application of one of the parties directs.^[98]
6.65      A range of case management powers, together with the doctrine of issue estoppel, could be used to oil the wheels between the courts and the tribunals where they each have jurisdiction for different aspects of a dispute. We therefore propose that there should be power for the courts to refer matters to the tribunals or the tribunals to refer matters to the court where necessary. This power should be exercisable by the tribunals of their own motion or on the application of one or both of the parties. We would expect regulations to state whether proceedings should be adjourned pending the determination of issues in the other forum. Regulations requiring parties to notify the tribunals if applications are made to the court other than on the court's direction would also be useful.^[99]

The role of a unified tribunals system

6.66      If our proposals for a unified tribunal structure were accepted, this might provide an opportunity for more jurisdictions to be allocated to tribunals rather than to the courts. We hope that our proposed PVT and reformed Lands Tribunal would over time become the natural forums for the adjudication of land, valuation and housing disputes. If important jurisdictional difficulties did arise in the future, the Government may decide that some court jurisdictions could be allocated to an PVT and a reformed Lands Tribunal.

Housing disputes in the Leasehold Valuation Tribunal and in the courts

6.67      We have noted above a number of specific overlaps between the Leasehold Valuation Tribunal and the courts, for example in relation to enfranchisement disputes. In addition to these specific areas of overlap, there is also generally a close relationship between the county court's jurisdiction over housing disputes and the jurisdiction of the Leasehold Valuation Tribunal.
6.68      Both the county court and the Leasehold Valuation Tribunal adjudicate on disputes between landlords and tenants. For example, service charge disputes can be heard in the Leasehold Valuation Tribunal or in the county court.^[100] Possession claims can only be adjudicated by the county court.^[101] In any one area in dispute, it will be clear which is the correct forum. In service charge cases, it will usually be necessary to apply to the Leasehold Valuation Tribunal. Possession cases will always be heard in the county court. However, when the dispute between landlord and tenant involves more than one distinct issue, difficulties can potentially arise. The difficulties here are a wider example of the problems of interlocking jurisdictions that we noted in relation to the RPTS tribunals.
6.69      The main example of this in the cases has concerned the Leasehold Valuation Tribunal's service charge jurisdiction. Problems might arise where a single dispute between landlord and tenant includes issues of service charge and also other issues. In Aylesbond Estates Ltd v MacMillan,^[102] the landlord commenced forfeiture proceedings in the county court against the tenant for non-payment of service charge and ground rent, and sought possession of the property. The tenant's defence was that the service charge was unreasonable, and she also counterclaimed for breach of the covenant of quiet enjoyment and nuisance. The tenant asked for the case to be transferred to the Leasehold Valuation Tribunal.^[103] The Court of Appeal declined to transfer the case, as the tribunal only had jurisdiction to determine issues about the reasonableness of service charge^[104] and not the other issues raised in the case. The fact that a referral of the service charge dispute to the Leasehold Valuation Tribunal would not dispose of the whole matter was one of the deciding factors in the court's refusal to order the transfer of the case.
6.70      In the Aylesbond Estates Ltd ^[105] case, the Court of Appeal was able to decide that the county court should adjudicate on all aspects of the dispute between the parties. This was because the case had been commenced in the courts rather than in the Leasehold Valuation Tribunal, and because the courts have a wider jurisdiction than the Leasehold Valuation Tribunal in landlord and tenant cases. The court has jurisdiction to adjudicate on issues such as forfeiture, breach of covenant and nuisance where the Leasehold Valuation Tribunal does not. The court retains its jurisdiction to adjudicate on service charge disputes.^[106] Problems could arise, however, if a similar case were started in the Leasehold Valuation Tribunal. The Leasehold Valuation Tribunal has a more limited jurisdiction than the courts. If a service charge case were commenced in the Leasehold Valuation Tribunal which also involved questions of, for example, breach of covenant, the Leasehold Valuation Tribunal could not adjudicate on these additional issues.
6.71      Problems could also arise if concurrent proceedings were started in the Leasehold Valuation Tribunal and the county court. The problems associated with concurrent proceedings are shown in the case of St Mary's Mansions Ltd v Iannacone.^[107] In this case, the tenants applied to the Leasehold Valuation Tribunal for a determination of the reasonableness of service charges. The landlord commenced concurrent proceedings in the county court, seeking forfeiture for non-payment of the service charges. In the court proceedings, the tenants were defending the forfeiture action on the basis of unreasonable service charges. Both the county court and the Leasehold Valuation Tribunal were therefore seised of the service charge dispute. It was agreed that the county court proceedings should be heard first, as otherwise there would be duplicated arguments, extra preparation time and cost and the prospect of diverse findings. However, the Leasehold Valuation Tribunal then set a date for its hearing in advance of the date of the county court hearing. On the landlord's application for leave to appeal against this decision, the Lands Tribunal refused leave on the basis that the Leasehold Valuation Tribunal had not unlawfully exercised its discretion in fixing the hearing date.
6.72      If concurrent proceedings are commenced in the Leasehold Valuation Tribunal and the county courts and one set of proceedings has been decided, issue estoppel might apply.^[108] Issue estoppel did not apply on the facts of St Mary's Mansions Ltd v Iannacone^[109] as some of the parties to the county court proceedings were not party to the earlier Leasehold Valuation Tribunal determination.
6.73      This kind of difficulty is inevitable if jurisdictions in one subject area, that is housing disputes, are divided between courts and tribunals. Although any difficulties could be dealt with by case management powers, in the longer term perhaps a wider enquiry is needed into the possibility of allocating most or all of this type of dispute to one adjudicative body. The need for this type of wider enquiry was raised by some consultees. For example, the Civil Justice Council said "We do not believe that a conclusion can be reached on this question until one examines the rationalisation of the court system which deals with land valuation and housing" and that "the whole picture of adjudication in housing cases needs to be considered." This is an issue to which we intend to return at the end of our Renting Homes housing project.

Note 1    Leggatt report, para 3.30.    [Back]

Note 2    Consultation Paper No 170, Part V.     [Back]

Note 3    The Constitutional and Administrative Law Bar Association said of the jurisdictional overlaps discussed in our consultation paper: “although those identified exist, we have not found them to present a problem in practice.” The Council on Tribunals “is not aware of any particular problems that are not already being addressed.”    [Back]

Note 4    See paras 6.38 – 6.40 below.     [Back]

Note 5    Inserted by the Housing Act 1996.    [Back]

Note 6    [2001] L&TR 17 (LT).    [Back]

Note 7    See also Wandsworth LBC v Manuel [2002] 2 E.G.L.R. 128 (Chancery Division) and Stapel v Bellshore Property Investments Ltd (No.1) [2000] C.L.Y. 3948 (Leasehold Valuation Tribunal) for further discussion of the limitations of the Leasehold Valuation Tribunal's service charge jurisdiction.    [Back]

Note 8    The case was heard by Judge Rich QC, a member of the Lands Tribunal and a circuit judge.     [Back]

Note 9    [2001] All ER 142; [2001] EWCA Civ 1095.    [Back]

Note 10    The Residential Property Tribunal Service said of the situation relating to the service charge jurisdiction that it has “caused difficulty and disappointment for parties and has made the jurisdiction awkward to administer.”    [Back]

Note 11    The majority of the Act is not yet in force.    [Back]

Note 12    Inserted by the Commonhold and Leasehold Reform Act 2002, s 155.    [Back]

Note 13    [2001] All ER 142; [2001] EWCA Civ 1095.    [Back]

Note 14    Section 27(A)(7) provides that the jurisdiction of the Leasehold Valuation Tribunal is in addition to any jurisdiction of the court.    [Back]

Note 15    As amended by the Commonhold and Leasehold Reform Act 2002.     [Back]

Note 16    A full discussion of potential areas of overlap is set out in Consultation Paper No 170, Appendix F.    [Back]

Note 17    Lands Tribunal ref LRA/3/2000.    [Back]

Note 18    This is said by the Lands Tribunal in the case to be a power for the county court “in effect to order specific performance of the new lease once the terms of the acquisition have been determined.”    [Back]

Note 19    See paras 6.24 – 6.26 below for a discussion of issue estoppel.    [Back]

Note 20    Lands Tribunal ref LRA/3/2000.    [Back]

Note 21    [2002] L&TR 10; [2001] EWCA Civ 956.    [Back]

Note 22    Note also Leasehold Reform, Housing and Urban Development Act 1993, s 90(2) and s 91(2) on the general areas of jurisdiction of the courts and the Leasehold Valuation Tribunal under the Act.     [Back]

Note 23    This is a new no fault right to manage under the Commonhold and Leasehold Reform Act 2002, Part 2, Chapter 1 (ss 71-113).     [Back]

Note 24    Commonhold and Leasehold Reform Act 2002, s 84(3).    [Back]

Note 25    Commonhold and Leasehold Reform Act 2002, s 85.    [Back]

Note 26    Commonhold and Leasehold Reform Act 2002, s 88(4).    [Back]

Note 27    Commonhold and Leasehold Reform Act 2002, s 94(3).    [Back]

Note 28    Commonhold and Leasehold Reform Act 2002, s 99(1).    [Back]

Note 29    Commonhold and Leasehold Reform Act 2002, s 107.    [Back]

Note 30    Carl Zeiss Stiftung v Rayner & Kellert Ltd (No 2) [1967] 1 AC 853, 934.    [Back]

Note 31    Lands Tribunal ref LRA/3/2000.    [Back]

Note 32    Lands Tribunal ref LRA/3/2000. See paras 6.13 – 6.15 above for discussion of this case.    [Back]

Note 33    [1990] Ch. 297.    [Back]

Note 34    Schedule 12 para 3.    [Back]

Note 35    The courts have wide case management powers including the power to adjourn hearings, and also to stay proceedings generally or until a specified date or event. See CPR 3.1(2).    [Back]

Note 36    Rent Assessment Committees (England and Wales) Regulations 1971 (SI 1971 No 1065), reg 8 and Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) Regulations 1993 (as amended), reg 8. The two sets of regulations are used for different cases in the Leasehold Valuation Tribunal depending on the source of the jurisdiction. Note that the Commonhold and Leasehold Reform Act 2002, Sched 12 para 1 makes provision for new regulations about the procedure of Leasehold Valuation Tribunals. No regulations have yet been made.    [Back]

Note 37    Schedule 11 para 9.    [Back]

Note 38    Section 22 in relation to assured shorthold tenancies. Section 14(1) in relation to assured tenancies.    [Back]

Note 39    Rent Act 1977, s 141(1)(a).    [Back]

Note 40    By the Housing Act 1988, s 40 the county court has jurisdiction to hear and determine any question arising under any provision of Chapters I to III and V or ss 27 and 28 of the Act other than a question falling within the jurisdiction of the Rent Assessment Committee.    [Back]

Note 41    Rent Assessment Committees (England and Wales) Regulations 1971 (SI 1971 No 1065), reg 8.    [Back]

Note 42    See paras 6.24 – 6.26 above for a discussion of issue estoppel.    [Back]

Note 43    Towards a Compulsory Purchase Code (1) Compensation – A Consultative Report, Consultation Paper No 165. See para 5.10.     [Back]

Note 44    Imperial Gaslight and Coke Co v Broadbent (1859) 7 HLC 600, 612; Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1, 7.     [Back]

Note 45    Lands Tribunal ref LCA/187/2000; [2002] EWCA Civ 925.    [Back]

Note 46    Towards a Compulsory Purchase Code: (1) Compensation – A Consultative Report, Consultation Paper No 165, paras 8.30 – 8.32 and Proposal 14.    [Back]

Note 47    Taxes Management Act 1970, s 47. This provision is substituted by the Taxes Management Act 1970, s 46D in relation to proceedings relating to the year 1996-1997 and subsequent years of assessment and in relation to an accounting period ending on or after 1 July 1999, by the Finance Act 1996, s 136 and Sched 22, paras 7 and 12.     [Back]

Note 48    The Lands Tribunal’s website lists only two cases in this jurisdiction.    [Back]

Note 49    Published by the Lord Chancellor’s Department in March 2000. See section 3, para 6.7.    [Back]

Note 50    The exceptions are Inheritance Tax, the Business Expansion Scheme and the Enterprise Investment Scheme.    [Back]

Note 51    The summary of consultation responses, published by the Lord Chancellor’s Department in March 2003, states that of the responses that commented on the appeal route for disputes over the value of land, two thirds felt that these appeals could in the first instance be heard by the Special Commissioners rather than the Lands Tribunal.     [Back]

Note 52    SI 1993 No 291. Reg 48.    [Back]

Note 53    Ryde on Rating and the Council Tax (1996), para F[306] – [320].    [Back]

Note 54    (1962) 9 RRC 336.    [Back]

Note 55    The case was referred to the Lands Tribunal for arbitration under the Local Government Act 1948, s 50 (now repealed).    [Back]

Note 56    For another example of an arbitration reference by a local valuation court to the Lands Tribunal, see Lever Brothers, Port Sunlight, Ltd v Bright (V.O.) (1961) 9 RRC 164, in which two arbitration references to the Lands Tribunal were heard together with an appeal from the local valuation court.    [Back]

Note 57    Land Registration Act 2002, s 108(2).    [Back]

Note 58    Under the Land Registration Act 2002, s 108(3), a qualifying disposition is a registerable disposition or a disposition that creates an interest that may be the subject of a notice in the register.     [Back]

Note 59    Land Registration Act 2002, s 108(2). By s 32(1), a notice is an entry in the register in respect of the burden of an interest affecting a registered estate or charge. Examples are the burden of a lease, an easement or a restrictive covenant.    [Back]

Note 60    Land Registration Act 2002, s 108(4).    [Back]

Note 61    Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, paras 16.8 – 16.10.    [Back]

Note 62    Land Registration Act 2002, Sched 6 para 1.    [Back]

Note 63    Under s 73, anyone may object to an application to the registrar.    [Back]

Note 64    Land Registration Act 2002, s 73(7).    [Back]

Note 65    The applicant would have to establish that an equity had arisen in his or her favour, by showing that the registered proprietor encouraged or allowed the applicant to believe that he or she owned the land in question; that the applicant acted to his or her detriment to the knowledge of the proprietor and that it would be unconscionable for the proprietor to deny the applicant the rights which he or she believed he or she had. See the explanation in Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, para 14.40, and for an account of the principles of proprietary estoppel see Megarry & Wade's Law of Real Property (6th ed 2000), Chapter 13.    [Back]

Note 66    Land Registration Act 2002, s 110(4).    [Back]

Note 67    Land Registration Act 2002, s 110(4). The court’s possible remedies are discussed in Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, para 14.40. There is a wide range of relief which the court can give, including compensation.     [Back]

Note 68    That is, a dispute referred to the Adjudicator under the Land Registration Act 2002, s 73(7).    [Back]

Note 69    Land Registration for the 21st Century: A Conveyancing Revolution (2001) Law Com No 271, para 16.20. See also paras 4.84 – 4.85 above.     [Back]

Note 70    Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules: a consultation on draft rules, Lord Chancellor’s Department (April 2003). See draft rules 8 and 9.     [Back]

Note 71    See footnote 70 above. Draft rule 10.    [Back]

Note 72    Section 28(1) and Sched 3 Case D.    [Back]

Note 73    Section 28(2).    [Back]

Note 74    Agricultural Holdings Act 1986, s 28(4).    [Back]

Note 75    Agricultural Holdings Act 1986, s 28(4)(a) and s 28(4)(b).    [Back]

Note 76    Scammell and Densham’s Law of Agricultural Holdings (8th ed 1997), p204.    [Back]

Note 77    Consultation Paper No 170, paras 5.7, C.27 – C.42 and the jurisdiction chart on p 55.    [Back]

Note 78    Under the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989 No 1058), reg 12.    [Back]

Note 79    Local Government Finance Act 1992, s 16.     [Back]

Note 80    Consultation Paper No 170, para 5.16.     [Back]

Note 81    Clause 71 confers jurisdiction on the Valuation Tribunal (as amended on report in the House of Lords on 17 July 2003).    [Back]

Note 82    Local Government Finance Act 1988, Sched 9 para 5, as amended.    [Back]

Note 83    See para 6.37 above.    [Back]

Note 84    See paras 4.36 and 6.55 – 6.56 above.    [Back]

Note 85    This appears to have been one of the main concerns of the Leggatt report which stated that “in some service charge cases, it appears to be common practice for the county court to hear the main issues of liability, but refer cases to the tribunal for valuations, which may then require the case to go back to the court for additional remedies.” See the Leggatt report, Part II, section on Rent Assessment Panels, para 23. This problem has now been eliminated by Commonhold and Leasehold Reform Act 2002.     [Back]

Note 86    Section 155, which inserts a new s 27A into the Landlord and Tenant Act 1985. See para 6.10 above.    [Back]

Note 87    This is also the view put forward by the senior judiciary in their response to our consultation. They state that “where the same matter is to arise for decision in both a tribunal and a court of law we would expect case management powers to be exercised, on application by one or other of the parties in either the tribunal reference or in the court proceedings, to avoid duplication of proceedings.”    [Back]

Note 88    Paragraph 3(1)(a).    [Back]

Note 89    Paragraph 3(1)(b).    [Back]

Note 90    Paragraph 3(2).    [Back]

Note 91    Paragraphs 3(3) and 3(4).    [Back]

Note 92    This power relates to cases arising from objections to applications under Land Registration Act 2002, s 73(7). See also paras 6.47 – 6.50 above.    [Back]

Note 93    Section 110(1).    [Back]

Note 94    Section 110(2).    [Back]

Note 95    Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules: a consultation on draft rules, Lord Chancellor’s Department (April 2003). See draft rules 8 and 9.     [Back]

Note 96    See footnote 95 above. Draft rule 10.    [Back]

Note 97    New South Wales Residential Tribunal Act 1998, s 23. Note that on 25 February 2002 the Residential Tribunal merged with the Fair Trading Tribunal to form the Consumer, Trader and Tenancy Tribunal.    [Back]

Note 98    New South Wales Residential Tribunal Act 1998, s 23.    [Back]

Note 99    This is similar to the requirement in the draft rules relating to the Adjudicator. See para 6.49 above.    [Back]

Note 100    Landlord and Tenant Act 1985, s 27A as inserted by the Commonhold and Leasehold Reform Act 2002. The Act does not confer jurisdiction on the county court but s 27A(7) provides that the jurisdiction of the Leasehold Valuation Tribunal is in addition to any jurisdiction of a court. This would allow the county court to consider service charge matters in the course of the exercise of its own jurisdiction, most probably in debt proceedings.    [Back]

Note 101    Note that before a lease can be forfeited for breach of covenant, the landlord must serve a notice under the Law of Property Act 1925, s 146(1). The Commonhold and Leasehold Reform Act 2002 s 168(1) imposes a new requirement that before such a notice can be served in relation to a long lease, s 168(2) of the Act must be satisfied. Long leases are defined in ss 76 and 77 of the Act. By s 168(4), one of the ways that s 168(2) can be satisfied is a determination by the Leasehold Valuation Tribunal that a breach of covenant has occurred. The Leasehold Valuation Tribunal therefore has jurisdiction to determine whether a s 146 notice can be served as a prelude to a forfeiture action. However, if proceedings are taken to obtain possession through forfeiture (or by any other means), these are proceedings in the courts.    [Back]

Note 102    [1999] L&TR 17.    [Back]

Note 103    Under the Landlord and Tenant Act 1985, s 31C (as amended by the Housing Act 1996).     [Back]

Note 104    Note that the Leasehold Valuation Tribunal now has a wider jurisdiction in relation to service charge disputes under the Commonhold and Leasehold Reform Act 2002 – see further para 6.10.    [Back]

Note 105    [1999] L&TR 17. Discussed at para 6.69 above.    [Back]

Note 106    Commonhold and Leasehold Reform Act 2002, s 27A(7).    [Back]

Note 107    Lands Tribunal ref LRX/11/2001.    [Back]

Note 108    Issue estoppel is discussed at paras 6.24 – 6.26 above.    [Back]

Note 109    Lands Tribunal ref LRX/11/2001.    [Back]