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Lord Goodhart: Two of our amendments form part of this group, the first of which is Amendment No. 177A. That amendment is intended to remove the criminal sanction in sub-paragraphs (3) and (4) of paragraph 4 of Schedule 12. We believe that it is inappropriate to introduce a criminal sanction into civil proceedings in this way. There must be a sanction of some kind, but the civil contempt of court provisions as applied in the county court make a more appropriate model rather than criminal sanctions. As to Amendment No. 183A, I am afraid that a mistake has been made, because the "£500" to which reference is made should be the figure in line 22, not in line 1. I do not press that matter. Finally, I certainly support Amendment No. 188A spoken to by the noble Baroness, Lady Gardner of Parkes.
Lord Falconer of Thoroton: I thank the noble Lord, Lord Kingsland, for the clarity with which he moved quite a complicated set of amendments. Amendments Nos. 174 to 177 make the point that one must be able to produce documents; in other words, information. We agree, but we say that paragraph 4 of Schedule 12 already provides that power. We agree with the principle of the amendments but believe that the point is already covered.
Amendment No. 177A in the name of the noble Lord, Lord Goodhart, is concerned with penalties for failing to supply information. The noble Lord wants to delete the criminal offence. These provisions are similar to those contained in paragraph 7 of Part 1 of Schedule 22 to the Housing Act 1980, which would be deleted by this Bill. The Committee will be aware that LVTs sometimes find it difficult to deal with parties who refuse to comply with directions or who act abusively at a hearing. We aim to give LVTs greater powers to deal with those who fail to co-operate in proceedings. This amendment would take away the powers. The noble Lord referred to proceedings for contempt of court, which we shall consider between now and Report stage. However, at the moment we remain more attached to criminal proceedings than contempt of court.
The effect of Amendments Nos. 178 to 181 spoken to by the noble Lord, Lord Kingsland, is to give teeth to enforced directions. Amendments Nos. 178, 179 and 180 allow LVTs to issue directions at a directions hearing. We believe that the pre-trial review is sufficient and that it would confuse matters to create the concept of a directions hearing as something different from such a review.
Amendment No. 181 provides that the procedure regulations may include provisions enabling LVTs to enforce their directions by dismissing applications, or excluding the whole or part of a party's case if a party fails to comply with those directions. We agree that the LVTs very much need powers of this kind. The lack of them up until now has been a constant hindrance to their work and a major factor in the disappointingly long time it can take for LVT cases to be dealt with. However, I am advised that, as they stand, the powers in this Bill to make procedure regulations are wide enough to allow us to provide that the LVT may exclude the whole or part of any party's case where that party has failed to comply with directions. Moreover, the introduction of such a provision might lead courts to interpret paragraph 1 of Schedule 12 more narrowly than we would wish. Therefore, we agree with the principle but it is not necessary.
As to Amendments Nos. 182 and 183--the use of written representations--the noble Lord, Lord Kingsland, gave the Committee some legal advice. He said that the Human Rights Act required a party to be heard and it could not be done by written representations. We do not accept that that is right. It can be done by written representations in an appropriate case. The important point is that people have the right to an oral hearing only where natural justice requires it. In certain circumstances, particularly in minor cases, that will not be the case and a written representations hearing is adequate. We envisage that a written representations hearing would be decided upon by the tribunal itself. We welcome views on the appropriate circumstances in which that should occur so that we can deal with it in the regulations that we produce in relation to this matter.
Amendment No. 183A would, if it had gone forward as drafted, have broken with the habit of a lifetime in relation to the amendments tabled by the noble Lord, Lord Goodhart, and the noble Baroness, Lady Hamwee. However, they were glad to discover that it was a typing error rather than anything else.
Amendments Nos. 184 to 187 in the name of the noble Lord, Lord Kingsland, are concerned with the new power of the LVT to award costs where one party has acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, subject to a maximum award of £500. Currently, LVTs sometimes find it difficult to deal with parties who refuse to comply with directions or who act abusively at a hearing. The new power would help them to control the parties more effectively. The maximum sum payable could be increased through regulation, but only with the approval of both Houses.
The grounds on which costs might be awarded are deliberately expressed in very broad terms. In Amendment No. 185 the noble Lord, Lord Kingsland, seeks to particularise the circumstances. These are good examples of the kind of behaviour that we would wish to be subject to a costs penalty, but we believe that the provisions as they stand encompass all the specific grounds that the amendment seeks to introduce. Moreover, the introduction of such detailed grounds might lead courts to interpret paragraph 10 more narrowly than we would wish. We cannot, therefore, agree to this amendment.
The noble Lord, Lord Kingsland, also wants to empower the LVTs to award costs without limit. However, as the noble Baroness, Lady Gardner of Parkes, pointed out graphically, that would disadvantage leaseholders. When service charge disputes were still a matter for the county court, landlords would intimidate leaseholders with the threat of large bills for costs. As landlords were generally able to afford the best legal advice, leaseholders doubted their own ability to win their case, even where they felt that they were clearly justified in their challenge, and often decided not to take their case to court. That is why this Bill provides a cap on the maximum sum payable. If this cap did not apply leaseholders might fear that even an innocent mistake in interpreting directions, or a failure to meet a deadline through some mishap or confusion, could lead to a very large costs bill. These fears would be exaggerated often by their lack of previous experience of LVT proceedings. Unscrupulous landlords would encourage such fears and use them to discourage leaseholders from exercising their rights.
When we debated this matter on a previous occasion, when sadly I was not present, I am told that the noble Lord, Lord Kingsland, suggested that this concern was not justified because he would also require the LVTs to consider the financial resources of the offending party when deciding on the award of costs. We do not agree that such an ambiguous limitation would provide sufficient reassurance. Nor do we believe that it would be right to fetter the discretion of the LVTs in this way. We do not want
Amendment No. 187 is aimed at making it clear that costs can be awarded in accordance with Clause 86 of the Bill. When the noble Lord, Lord Kingsland, tabled a similar amendment in the previous Session we realised that there was the potential for conflict between Clause 86 and paragraph 10 of the schedule. We therefore amended the Bill accordingly. Paragraph 10 now states that costs may be awarded in accordance with specific provisions under any enactment. That would include the provisions in Clause 86 of this Bill. I am grateful to the noble Lord for drawing our attention to this point, but I hope he agrees that we have now dealt with the matter that he raised on a previous occasion.
The effect of Amendments Nos. 188 and 188A tabled by the noble Baroness, Lady Gardner, would be to alter the procedures for appeals to the Lands Tribunal from the LVT. That has some attraction. No doubt the noble Baroness will point out that the argument I have just advanced in relation to LVTs applies equally to the Lands Tribunal. At the moment, one is at a loss to understand how one would distinguish between the two, save to say that there is a "leave" filter before one gets to the Lands Tribunal which to some extent reduces the degree to which tenants may feel at risk in relation to them.
However, having said all that, it is plain that the points raised by these amendments need careful study, in particular with my colleagues in the Lord Chancellor's Department. The Lands Tribunal has a complex jurisdiction that comprises cases heard at first instance and appeals from other tribunals. Therefore, it is important that we also consider the implications of any proposed changes in one part of the Lands Tribunal's jurisdiction for the other parts of its work. I undertake to consider it but cannot make any firm commitment at this stage. That deals with all the specific points raised. I hope that in almost every case I have been able to reassure Members of the Committee that the points are already dealt with somewhere in the Bill. In relation to the unlimited costs proposals of the noble Lord, Lord Kingsland, as a matter of principle, we do not think that they are appropriate.
Lord Kingsland: I seem to have failed in every single case to persuade the Minister of the merits of my amendments. The noble and learned Lord was kind enough to say that I explained them very clearly. With hindsight, perhaps I should have been much more opaque. I shall return to these matters on Report. They are extremely important. The system is defective in many ways. It deserves better than it has received so far. Meanwhile, I beg leave to withdraw the amendment.