The Future of Property Litigation

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02 July, 2018

In July 2015 the Civil Justice Council set up The Working Group on Property Disputes in the Courts and Tribunals. Their purpose? To consider proposals for "flexible deployment" of judges between the First-tier Tribunal (Property Chamber) and the County Court in landlord and tenant, property and housing disputes.

The possibility of flexible deployment arises from changes introduced by the Crime and Courts Act 2013. As a result, all County Court judges are FTT judges, and vice versa. As the County Court is now a single court for England and Wales (section 1 Crime and Courts Act 2013), subject to designation, all FTT judges can decide issues within the County Court's jurisdiction and all County Court judges can decide issues within the jurisdiction of the FTT.

So how could this be applied in practice?

The Working Party produced an interim report in May 2016. A copy can be found here:

The report considers the desirability of establishing a new "housing court or tribunal". The Working Party accepted, however, that at that time there was no realistic prospect of achieving this in the foreseeable future. Instead the working party recommended that "flexible deployment" of judges between the FTT(PC) and the County Court is implemented for specified classes of property disputes. This would allow for those disputes to be resolved in one forum and avoid the need to jump between the FTT(PC) and County Court to decide issues arising within different jurisdictions.

The proposal, which is currently being piloted, involves one judge wearing two hats in order to decide the whole of a dispute - a County Court hat and a FTT(PC) hat.

Although there is little reporting on cases which have been heard under the pilot scheme, there is evidence of judges experiencing 'teething problems' in juggling their two hats (to mix metaphors!).

In Avon Ground Rents Ltd v Sarah Louise Child [2018] UKUT 204 (LC), the 'FFT judge' attempted to deal with County Court costs, for which the FTT does not have jurisdiction. The judge therefore needs to be very clear about which role is being performed (ie. which hat they are wearing), and the other FTT members must not be involved in decisions on issues falling with the County Court's jurisdiction.

There appears to be mixed opinion on the success of the pilot so we will await review of the scheme following its conclusion. It will also be interesting to see if the successes of "flexible deployment" and the pilot scheme will encourage or hinder the ongoing campaign for a specialist housing court, which is being supported by Sajid Javid MP following recommendations from the Residential Landlord's Association. A Government consultation into these plans is due to be held later this year.

For more information contact Lachlan McLean in our Housing & Regeneration department via email or phone on 01257 240834. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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