Ian Arthur Hurley & Anor v Turner’s Regency Parks Ltd

Where a tribunal is required to serve an application on each named respondent, service by email on one joint respondent does not amount to service on the other unless that person has authorised receipt on their behalf. A procedural irregularity which prevents a respondent from participating is sufficiently serious to require the resulting determination to be set aside.

Email service is permitted under the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, but it carries the risk that a message will be diverted to junk mail. A respondent is not at fault merely because that occurs. It will generally be contrary to the interests of justice to leave standing a decision made without a respondent’s awareness of the proceedings or a proper opportunity to participate.

The site owner applied to the First-tier Tribunal for a determination of an increased pitch fee under the written agreement held jointly by the two appellants. The application named both residents as respondents, but the First-tier Tribunal sent the application only by email to one of them. It did not serve the other appellant and did not post the application to either.

Neither appellant participated. The First-tier Tribunal determined the new pitch fee on the papers on 8 May 2024. The appellants appealed after the first appellant found the decision in his junk-email folder. The central issue was whether the determination could stand despite non-service on one joint respondent and the other respondent’s lack of awareness of the proceedings.

1. Appeal allowed. The First-tier Tribunal’s pitch-fee determination was set aside and the application was remitted to that tribunal for reconsideration by the same or a different panel.
2. Under rule 29(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal had to provide the application and supporting documents to each respondent named in it. The email sent to one appellant was not good service on the other. There was no evidence that she had authorised him to receive legal communications for her. Her non-service prevented her participation and was a serious procedural irregularity. As the appellants were jointly responsible for the pitch fee, the determination had to be set aside in its entirety.
3. The result would have been the same for the appellant to whom the email was addressed, even had he been the sole respondent. The tribunal could serve documents by email under rule 16(1)(c), but email service carries the risk of diversion to spam or junk folders. On the accepted facts, it was not fair to treat him as aware of proceedings merely because he might have found the email by examining his junk folder more closely. A decision should generally not stand where a sole respondent lacked awareness and a proper opportunity to participate.
4. The Tribunal also observed that rule 51 provided a suitable alternative remedy. The First-tier Tribunal could itself have set aside its dispositive decision in the interests of justice because the application was not sent to, or received at an appropriate time by, a party. That course would have avoided the delay and expense of an appeal.

• Upper Tribunal (Lands Chamber): allowed the appeal, set aside the First-tier Tribunal’s pitch-fee determination, and remitted the application for further consideration.
• First-tier Tribunal (Property Chamber): on 8 May 2024 determined the proposed pitch-fee increase on the papers, without participation by either respondent.