In litigation it goes without saying: you comply with the directions of the Court. If you don’t, your case could be thrown out. As a minimum, cost sanctions are likely to follow.
Generally, if you haven’t followed the directions of the Court - if you haven’t ‘played by the rules’ - you don’t expect to win.
The Upper Tribunal (Lands Chamber) confirmed recently that parties appearing before the First-Tier Tribunal (Property Chamber) (FTT) should expect no less.
Mr Podkrolewicz (Mr P) applied to the FTT for a determination of his rent under the Housing Act 1988. The FTT gave directions. One of the directions required that the landlord provide Mr P with any evidence of comparable rents that it intended to rely on, in advance of the hearing.
Neither party made written submissions. However, at the hearing, the landlord’s representative produced evidence of comparable rents, which the FTT then relied on when making its decision.
Mr P appealed and the Upper Tribunal ruled that it was ‘procedurally unfair’ of the FTT to rely on the landlord’s evidence, in circumstances where Mr P had not been provided with a copy beforehand. Accordingly, the matter was sent back to the FTT to be re-heard at a later date.
This decision will come as no surprise to most. However, for some it will be a useful reminder that - regardless of the forum - if you don’t adhere to the rules of engagement, you’re likely to come a cropper, eventually.
The respondent should not have been allowed to produce evidence on which the appellant had not been able to comment; either the evidence should have been excluded or the hearing should have been adjourned... I take the view that the decision made by the FTT was procedurally unfair and should be set aside.