It was wrong to strike out points of dispute (PoDs), filed as part of a detailed assessment, in response to a failure to comply with an order to make an interim payment, without firstly making an unless order.

In Astor Bristol Ltd and Ors v Bristol School of Performing Arts Ltd [2021] UKUT 43 (LC) the respondent, BSPA, successfully rectified the title of a property. Following the conclusion of the claim the appellants, AB, were ordered to pay BSPA’s costs on the indemnity basis and to make an interim payment, of £48,185, by 22 May 2020.

On 5 June 2020, the First-tier Tribunal (‘FTT’) refused AB’s application for an extension of time to make the interim payment.

Meanwhile, BSPA filed its bill of costs, claiming £142,502, and AB filed PoDs. Had all of AB’s points been successful, AB would have had to pay £72,458.

On 9 July, BSPA applied for what it called “debarring and/or unless orders” because of AB’s failure to make the interim payment. The FTT – having refused AB an extension to the seven days to respond – chose the former, striking out the PoDs already filed and awarding the claimed costs in full, as well as the costs of the application.

The FTT judge said her order was made under the FTT’s “wide powers to manage litigation … in accordance with the overriding objective”.

On appeal, the Upper Tribunal found that the FTT did not have the jurisdiction to make the order: “Rule 3 [of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the “FTT Rules”)] sets out the overriding objective, and rule 6 gives the FTT power to regulate its own procedure, but the rules then go on to make specific provisions about a particular order, and those specific provisions govern the FTT’s jurisdiction to make that particular order.

“Neither rule 3, nor rule 6 nor rule 8 gives the FTT power to strike out the whole or part of proceedings otherwise than in accordance with rule 9.”

The Judge stated that the FTT could have struck out the PoDs, in response to the failure to make an interim payment, but only by first making an unless order in compliance with rule 9(3)(a) of the FTT Rules. The FTT did not do this and accordingly there was no jurisdiction to strike out the PoDs.