Graham Porteous Bishop v Margaret Jaques

Case-management powers must be exercised consistently with the overriding objective of dealing with proceedings fairly and justly. Tribunals should accommodate the difficulties faced by unrepresented parties, while still expecting them to familiarise themselves with procedural rules. Honest misunderstandings should not be treated as wilful defiance. Directions carrying an automatic strike-out sanction must be clear, and the sanction must be proportionate to the actual default. Where an application to vary or extend an unless order remains undetermined before the sanction takes effect, that application is relevant to both compliance and reinstatement. A tribunal should not strike out proceedings without considering such an application, particularly where the party has acted in good faith and the tribunal’s own misunderstanding contributed to the failure.

The appellant applied to the Land Registry for determination of the boundary between his land and the respondent’s adjoining land. The reference was transferred to the First-tier Tribunal (Property Chamber), which directed disclosure and made an unless order requiring unredacted disclosure by a specified date.

The appellant disclosed substantial material, some in redacted form, and made applications under rule 17 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for permission to withhold or redact sensitive material. He also sought further time. Those applications were not determined before the deadline, and the proceedings were automatically struck out. The FTT refused reinstatement. The central issue was whether that refusal was within the proper limits of case-management discretion.

1. Appeal allowed. The Upper Tribunal set aside the FTT’s refusal to reinstate the proceedings and remade the decision by reinstating the appellant’s application, subject to conditions.

2. Appellate intervention in case-management decisions is limited, as explained in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795. However, a discretionary decision must be based on relevant considerations. The FTT had misunderstood the appellant’s applications and had failed to consider the relevance of rule 17.

3. Fair case management requires sensitivity to the difficulties experienced by litigants in person. They are not a privileged class, but fairness does not permit honest mistakes to be treated as wilful non-compliance or require unrepresented parties to perform to the standard of professional litigators.

4. The FTT’s directions were insufficiently clear. The original order did not explain that disclosure extended to documents held by former solicitors. The later orders wrongly proceeded on the basis that no disclosure or explanation had been provided. The unless order therefore assumed a degree of default which was absent and imposed an unnecessarily draconian sanction.

5. Rule 17 provided a plausible procedural basis for supplying unredacted material to the FTT while withholding it from the respondent pending determination of the application. The appellant’s applications had been notified to the respondent’s solicitors. The FTT was wrong to treat the applications as unserved or as deliberate exclusion of the respondent.

6. An application to vary or extend an unless order leading to automatic strike-out, made 14 days before expiry and left undetermined, was plainly relevant. A short extension should have been granted to enable the application to be determined and the parties informed. The FTT’s failure to do so made its refusal to reinstate flawed.

7. Reinstatement was ordered on condition that, within 14 days of publication, the appellant provide full and unredacted copies of the material already disclosed to the Tribunal concerning the 1992 purchase and 2019 sale, and then apply to the FTT for further directions. The Upper Tribunal declined to transfer the substantive proceedings and suggested that a different FTT judge should conduct the case.

• First-tier Tribunal (Property Chamber): the proceedings were automatically struck out for non-compliance with an unless order, and the request for reinstatement was refused on 14 October 2021.
• Upper Tribunal (Lands Chamber): the refusal was set aside, the appeal was allowed, and the proceedings were reinstated on conditions.