Tribunal Judge Warns FTT Over Bias

A senior property tribunal judge has ticked off a lower court for getting involved in issues not part of the case being heard.

Upper Tribunal Chamber President Justice Edwin Johnson was hearing an appeal from housing association Sovereign Network Homes against the First-Tier Property Tribunal's interim decision in a dispute about service charges demanded from tenants on the Cudweed Estate, Isle of Dogs, London.

The tenants had complained that the landlord had incorrectly drafted and issued service charge demands.

However, the FTT wanted to know if the tenants had a contractual liability for paying the charges.

The landlord argued that the FTT had not notified them that this issue would be included in the case and that the FTT was wrong to raise the point and give directions about making a determination in 24 hours.

Judge accused of unfairness

Sovereign's lawyer Justib Bates KC and Kate Traynor complained the FTT was wrong to raise the matter and should have ruled on the reasonableness or otherwise of the service charges. Not doing so, they said, was unfair and could be interpreted as bias.

Justice Johnson said: "It seems to me that the FTT, in raising the contractual liability issue, stepped outside its arbitral role and effectively took on an inquisitorial or investigative role.

"In my view, the FTT should either not have raised the contractual liability issue at all or, having raised the contractual liability issue, should have accepted the argument of [counsel for Sovereign] that it was not appropriate to allow [it] to be brought into the application."

Sovereign's second ground concerned unfairness and bias in the hearing. Justice Johnson said he should deal with this as the Sovereign's case was concerning.

Inappropriate attitude

The housing association's legal team took several complaints about the conduct of the FTT to Justice Johnson, including:

• The FTT asked how long MS Traynor had worked as a lawyer, which was considered inappropriate and undermined her professional abilities
• The FTT's Judge Robert Latham adopted a negative tone and rolled his eyes when speaking to Sovereign's lawyers
• Judge Latham frequently interrupted Sovereign's lawyers

Justice Johnson ruled that the FTT could not pursue the case of contractual liability and directed the FTT to make a decision based on the reasonableness of the service charges.

He declined to rule on how the FTT handled the hearing as no transcript of the proceedings was available.

Justice Johnson added: "It seems to me that the FTT descended into the arena, and became the advocate of the applicants' case on the contractual liability issue. This rendered the hearing unfair.

"In my view, a fair-minded and informed observer, having considered all the relevant facts, would have concluded that there was a real possibility of bias."

He also warned against the FTT taking an adversarial role in similar cases, pointing out the FTT's role was to resolve disputes, not to investigate them.

Read the full transcript of the appeal