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AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

December 2010.

Flotsam would never (he hopes) be a person to have any delusions as to his own grandeur; but he is interested that, since last he took up his pen, the Government has moved on Lands Tribunal fees, and the Tribunal itself has published a consultation draft (albeit with limited circulation) of its own new Practice Directions, while VTE is to become part of The Tribunal Service.

Taking matters in order, the first announcement was that, having listened very carefully to the consultation on Lands Tribunal fees, the Government was going to implement most of the original proposals. Nobody can be surprised by this in the present economic climate; but it is paradoxical that, while complaining that the cost of litigation is rising, trying to cut it and cutting Legal Aid yet again, “the system” is recognising that costs are rising and is, er, awarding itself a handsome further payment from the people’s pockets.

This is all very well when the body levying the charge is in a monopoly situation, and able to say “So what?” to any criticism levelled at it. Could there be an alternative route to justice? Read on and see…..

The next harbinger of change was the closure of the consultation on the new draft Rules for the Lands Tribunal. They do not appear to have been made yet, in their final form; but again, it looks like a triumph for those who know what is Good for Us, with their “one size fits all” philosophy of writing procedural rules.

But then, just as the ratepayers’ wagons are encircled and the braves of Big Chief Black Lion are firing practice directions at them, threatening to end life as they know it, the sound of bugles is heard, and in the best traditions of black-and-white Westerns, the cavalry from Fort Bedford Square are seen, galloping (apparently) to the rescue: and, look – they are hurling their own practice directions into the melee, as well!

Yes – the Lands Tribunal circulated its draft Practice Directions on 1st October, asking for replies by 22nd October. Unfortunately, the consultees appear not to have included the Institute, assuredly because of an oversight, somewhere; but we did manage to get in on the act, eventually. These new Directions came into force on 29th November; and the consultation draft made reference to the draft Rules, with only a few amendments, which gave rise to the assumption that the Rules would be promulgated, more or less as drafted. The consultation period was woefully short.

The Lands Tribunal’s Practice Directions are, in effect, a set of rules within the Rules, and are specifically said to have the same force as the Rules. They are pretty bulky, as practice directions used to go until the Civil Procedure Rules came along for the Courts. This is where their potential strength (and also their potential danger) both lie.

One of the problems with former sets of Rules was that, as statutory instruments, a considerable amount of drafting effort and consultation were required, and also a degree of political will, in order to see them tabled. In this way, however, although the need to consult has not gone, the procedure in the Tribunal can now be more flexible than has previously been the case, and there will be less difficulty in adjusting them to developing conditions and practice requirements. These Practice Directions, therefore, range over the expanded jurisdictions of the Tribunal, to provide for them, comprehensively. From “one size fits all” we may have gathered a tailored suit, albeit one which could use another couple of fittings.

On the other hand, this ability to change things rapidly could (at least in theory) be used to move proverbial goalposts in the same way as Regulations are adjusted to circumvent inconvenient decisions, rapidly: one thinks of N/J. Flotsam hopes that things will never come to that.

As for the alternative route referred to earlier? ADR – coupled with the power to penalise in costs a party who does not willingly pursue that route. The Tribunal has always encouraged ADR, but now it appears in the procedure and it is to be hoped that litigants will avail themselves of the opportunity of resolving, or at least narrowing their disputes. We wait to see whether or not VOA will now depart from its hitherto complete refusal to take this route.

Of course, these Practice Directions do nothing directly to alter what is coming from Black Lion House; but the power to elect for a complete re-hearing remains, for the time being at least. When the standard of training of VT members is raised, it may be appropriate to revisit the situation: but not until then.

Perhaps “one size fits all” will be visited on VTE when it is merged with The Tribunal Service, as will be happening among the quango killings now under way. An end to the apparent inflexibility of Black Lion House as most recently demonstrated at the recent RSA Question and Answer meeting, would be a relief.


Peter Scrafton

©J.P. Scrafton, 2012

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