Hurley and another v Turner’s Regency Parks Ltd

Park homes – Procedure – Pitch fee review – Notice of application for pitch fee increase served by tribunal on only one of two joint respondents (the appellants) – Notice served by e-mail and diverted to junk folder – First-tier Tribunal determining pitch fee without participation of appellants – Whether FTT decision to stand where sole respondent unaware of proceedings with no opportunity to participate – Appeal allowed The appellants were both parties to a written agreement entitling them to station a mobile home at the Truro Heights mobile home park, which was owned by the respondent and a protected site for the purpose of the Mobile Homes Act 1983. The written agreement commenced on 23 May 2017 and provided for a pitch fee review on 1 April each year. On 16 February 2023, the respondent served a review notice on the appellants seeking agreement for an increase of 10.5% from 1 April 2023. Although the proposed increase was less than the relevant RPI increase of 13.4%, the parties could not reach agreement. On 31 May 2023, the respondent applied to the First-tier Tribunal for an order under paragraph 16(b) of Chapter 2 of schedule 1 to the 1983 Act determining the amount of the pitch fee increase. The application named the appellants and gave their postal address and a single e-mail address for the first appellant. The FTT served a copy of the notice of application and supporting documents by e-mail addressed to the first appellant, using the e-mail address provided by the respondent. It did not serve the notice on the second appellant by e-mail, because it did not have her e-mail address. Nor did it serve the application by post on either of the appellants. As they did not respond to the application, the FTT made a decision on paper without a hearing. It determined the respondent’s proposed increase was reasonable and fixed a new pitch fee of £176.05. The appellants appealed. Held: The appeal was allowed. (1) When the FTT received a notice of application it was required by rule 29(1) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to provide a copy of the application and any accompanying documents to the respondent. Where there was more than one respondent, the FTT was required to provide a copy of the application to each respondent named in the application. In this case, the FTT did not serve the second appellant. An e-mail sent to the e-mail address of one respondent was not good service on another respondent unless the recipient had been authorised by the other to receive communications on their behalf. There was nothing to indicate in this case that the second appellant had authorised the first appellant to receive material on her behalf. (2) As the second appellant did not in fact receive a copy of the notice of application sent to the first appellant by e-mail, and as no copy was sent to her postal address, there had been a serious procedural irregularity in her case. Although not every irregularity was necessarily fatal to a subsequent decision, one which had prevented a respondent from participating in the proceedings was sufficiently serious to require that the FTT’s determination be set aside so far as it affected her. Since the appellants were jointly responsible for the pitch fee, it was necessary for the decision to be set aside in its entirety, and not simply in its application to the second appellant. (3) The tribunal would assume that the notice of application sent to the first appellant’s e-mail address by the FTT in June 2023 was diverted to a junk folder and later deleted without being read, as described by the first appellant. There was no reason to doubt his account of events. He acted very promptly when he said he first became aware of the decision and had continued to do so in connection with the appeal. The FTT was entitled to serve documents by e-mail; rule 16(1)(c) of the FTT Rules provided that documents sent by the FTT itself might be sent by such method as it might permit, and it had permitted service by e-mail. But service by e-mail was not without risk. E-mails might be treated as spam or junk by the intended recipient’s account and might be diverted or blocked. The intended recipient could not be considered at fault if an e-mail sent by a tribunal did not reach the addressee’s inbox. The fact the first appellant could have become aware of the application if he had paid greater attention to the contents of his junk folder was no reason to treat him as having been aware of the proceedings even if, technically, they might have been served on him. In general, it would not be in the interests of justice to allow an FTT decision to stand in circumstances where a sole respondent was not aware of the proceedings and had not had a proper opportunity to participate. Therefore, even if the first appellant had been the only respondent, the decision would have been aside. (4) The FTT was required to serve a copy of an application notice on each respondent and it could not be assumed that one respondent was authorised by another to act on their behalf in the receipt of legal proceedings. If the FTT had not been provided with an e-mail address for a particular respondent it was necessary that service be achieved by some other method, the most obvious being by post. But the fact that non-service of the application on the second appellant was not the responsibility of the first appellant did not overcome the unfairness to her of being prevented from participating in the proceedings. The application would be remitted for determination of a new pitch fee to the FTT for further consideration by the same or a different panel. Per curiam: Rule 51 of the FTT Rules allowed the FTT to set aside a decision which disposed of proceedings if it considered that it was in the interests of justice to do so and if one or more of the conditions in rule 51(2) was satisfied. Those conditions included where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party. The circumstances of this case fell within that condition and it would have been perfectly proper for the FTT to have set aside its own decision and give directions for a response to the application by the appellants. That would have avoided the delay and expense of an appeal. The appeal was determined on written representations. Eileen O’Grady, barrister Click here to read a transcript of Hurley and another v Turner’s Regency Parks Ltd