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The Building Safety Act 2022 – Procedural Issues with Remediation Orders 13 September 2023

  • Disclosure orders may have greater importance in remediation and remediation contribution order applications, than in service charge disputes.
  • The FtT (Property Chamber) Rules are not the same as the disclosure rules of the CPR.
  • The focus is on disclosure as a means to ensure the Tribunal has the information the parties reasonably require it to have to decide the case.

ROs: procedural issues

Property law social media in August was been excited by the first FtT remediation order decision, Waite v Kedai  (2023, FtT(PC), Powell and Bowers) about the property(2-4 Leigham Court. One of the many potential takeaways is the FtT’s approach to some of the more procedural issues. Earlier this year in a Falcon Chambers podcast episode, we sketched some procedural queries in relation to remediation orders: how were the leaseholders to ensure they had the necessary reports that (perhaps) the landlord had, in particular on the assumption that the Tribunal would need as much expert assistance as possible not only to determine if an order should be made, but in the drafting of that order, which would, we assumed, need to be detailed as to the works required.

In Waite v Kedai a disclosure order was made against the landlord, who did have reports, and permission given for expert evidence. There does not seem to have been much difficulty in the disclosure question. What is interesting is the approach of the FtT to the precision needed in making a remediation order. The order must be sufficiently precise for enforcement in the county court (para 82) with the extent of precision needed depending on the case. A general order requiring works to be carried out with a provision for applications for variation of the works set out was an (and this case the) appropriate order to make.

Disclosure issues are more to the fore in remediation and remediation contribution order applications than in most service charge cases, for example. It may be tempting to assume that the principles which apply are those we are familiar with from the CPR. The FtT (Property Chamber)’s Rules are not drawn in precisely like terms. Case law from other parts of the Tribunal system with similar rules, such as R D Utilities v HMRC [2022] UKFTT 347 (TC), emphasises that there is no expectation of disclosure as in the CPR. The person seeking disclosure must persuade the Tribunal that there is sufficient reason for it, and disclosure should be viewed as a means to ensure the Tribunal has the information the parties reasonably require for the determination of the case, rather than a right. That approach is echoed in the Lands Chamber Practice Direction.

The Building Safety Act 2022 received Royal Assent in April 2022. It is seen as an “overhaul” of previous regulations and changes how residential buildings should be constructed, maintained and made safe. A group of Falcon Chambers barristers have studied the Act, analysed how it has been interpreted in courts and tribunals thus far, and have first-hand experience of BSA cases. In this series of articles Paul Letman, Catherine Taskis KC, Cecily Crampin, Camilla Chorfi and Julia Petrenko set out key issues property law practitioners should be aware about the BSA 2022.

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