Norma Hortense Beharie v Swift Advances Plc

An appeal from a First-tier Tribunal costs decision may proceed under the appropriate statutory route even though an earlier procedural decision has been set aside. The bar on appealing a set-aside decision does not prevent an appeal from the later decision which replaces it.

Fair procedure requires a tribunal to consider material representations and to give a litigant a proper opportunity to address a proposed course which may determine the assessment of costs. A decision made without a material document and without that opportunity is erroneous. The appellate tribunal may nevertheless substitute its own decision where summary assessment is appropriate and the overlooked objections do not justify reducing the costs.

Ms Beharie unsuccessfully sought the removal of the respondent’s unilateral notice in proceedings referred to the First-tier Tribunal by HM Land Registry. Following a costs order in the respondent’s favour, the First-tier Tribunal initially directed detailed assessment. It later set that direction aside and summarily assessed costs at £43,437.41.

Ms Beharie, acting in person, appealed the later decision. She contended that her letter of 28 August 2019 contained objections to the bill of costs and that she had not been allowed to make representations before the First-tier Tribunal changed to summary assessment. The respondent challenged the Upper Tribunal’s jurisdiction. The central issues were the available routes of appeal, the First-tier Tribunal’s procedural jurisdiction, fairness, and the proper assessment of the costs.

1. The appeal was allowed. The decision of 14 August 2020 was set aside because it had been made in error. The Tribunal nevertheless substituted a summary assessment in the same sum of £43,437.41.

2. Under section 111 of the Land Registration Act 2002, an appeal from a First-tier Tribunal decision under that Act lies to the Upper Tribunal otherwise than on a point of law. A point-of-law appeal instead proceeds under section 11 of the Tribunals, Courts and Enforcement Act 2007. The routes are mutually exclusive. The statutory bars concerning decisions which have been set aside applied to the earlier detailed-assessment decision, not to the later decision of 14 August 2020. The Upper Tribunal therefore had jurisdiction over the factual and legal complaints directed to that later decision.

3. The First-tier Tribunal had power under rule 6 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 to set aside its earlier direction for detailed assessment. Rule 51 was not the relevant source of that power because it concerns decisions disposing of proceedings.

4. The First-tier Tribunal’s later decision was procedurally unfair. The judge had not seen Ms Beharie’s letter of 28 August 2019, which set out her objections to the bill, and she had not been given an opportunity to comment on replacing detailed assessment with summary assessment. The earlier insistence that a litigant in person comply with Civil Procedure Rules requirements, without addressing the substance of her objections, was also inappropriate in tribunal proceedings.

5. The Upper Tribunal considered the bill and the objections itself. The objections disclosed no impropriety, unreasonable charge, disproportionality, or basis for reducing the claimed costs. Summary assessment was suitable, and Ms Beharie was ordered to pay £43,437.41 within 28 days.

• Upper Tribunal (Lands Chamber): allowed the appeal from the First-tier Tribunal’s costs decision of 14 August 2020, set it aside for procedural error, and substituted a summary assessment in the same amount.

• First-tier Tribunal (Property Chamber): after an earlier direction for detailed assessment, summarily assessed the respondent’s costs at £43,437.41 and required payment.