Adam Thomas Nicholson & Anor v Ian Reginald Hale & Anor

The Upper Tribunal may determine both the incidence and assessment of costs after setting aside a First-tier Tribunal costs order and remaking the underlying decision. In exercising its costs discretion, it may apply relevant provisions of the Civil Procedure Rules 1998, whether or not they technically apply. Costs generally follow the event, but an issues-based discount may be appropriate where substantial issues were separately litigated. A litigant in person may recover reasonable time that would have been recoverable if undertaken by a legal representative. The prescribed rate applies unless financial loss is proved by satisfactory evidence on the balance of probabilities.

The First-tier Tribunal had allowed the Respondents’ claim to register a prescriptive right of way and ordered the Appellants to pay £10,481.60 in costs. On appeal and cross-appeal, the Upper Tribunal allowed the appeal on one ground, dismissed the cross-appeal, set aside the FTT’s decision and costs order, and remade the decision so that the claim failed because the use had not been as of right for 20 years.

The Tribunal then considered the incidence and assessment of costs in the FTT proceedings, the appeal and cross-appeal, and the subsequent costs hearing.

1. The Tribunal had jurisdiction to determine the costs of the appeal and cross-appeal under Rule 10(6)(g)(i) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. Having set aside the FTT costs order and remade the FTT decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, it also had power to determine the FTT costs. Remission was unnecessary and disproportionate.

2. The Tribunal had a discretion over costs and considered it appropriate to apply relevant provisions of the Civil Procedure Rules 1998. Costs followed the event for the appeal and cross-appeal. The Appellants’ loss on one ground was incidental and did not justify a discount. A 25% discount was appropriate for the FTT costs because substantial time had been spent on the separate issue of whether the required 20-year period of use had been proved.

3. No costs sanction was imposed for failure to engage in alternative dispute resolution. The offers made did not demonstrate a realistic prospect of meaningful concessions, and the later round-table proposal had not been definitively rejected.

4. Under CPR 46.5, a litigant in person may recover costs for work of categories which would have been allowed if performed by a legal representative. Under CPR 46.5(4), the prescribed rate applies unless financial loss is proved. The Appellants had not proved, on the balance of probabilities, that Mr Nicholson had suffered financial loss. The evidence consisted principally of unsigned employer letters and did not establish the alleged liability to repay £16,640. His recoverable time was therefore limited to £19 per hour.

5. The Tribunal allowed 80 hours for work in the FTT and 20 hours for work in the appeal and cross-appeal. It summarily assessed the FTT costs at £10,657.90 before the 25% discount and £7,993.42 after discount, and the UT costs at £14,565. There was no order as to the costs of the costs hearing, and payment was allowed within 21 days.

• First-tier Tribunal (Property Chamber): Allowed the Respondents’ application to register a prescriptive right of way and ordered the Appellants to pay the Respondents’ costs.
• Upper Tribunal (Lands Chamber): Allowed the appeal on Ground 1, dismissed the cross-appeal, set aside the FTT decision and costs order, and remade the decision dismissing the claim to the right of way.
• Upper Tribunal (Lands Chamber, costs decision): Ordered payment of 75% of the Appellants’ FTT costs and all of their assessed UT costs, with no order as to the costs of the costs hearing.