Senada Ziga & Ors v Darren Stuart Yarnold & Ors

When assessing a litigant in person’s recoverable costs, the tribunal must assess the evidence actually adduced to prove financial loss, including unchallenged evidence that litigation prevented remunerative work. It must not decide the issue solely by identifying evidence which the litigant might have produced.

The two-thirds limit in CPR r.46.5(2), applied in the First-tier Tribunal through rule 13(8), is calculated by reference to the total costs that would reasonably have been allowed if the litigant had been represented. The comparison is not made separately by assigning different parts of the litigation to individual litigants in person. Reasonable hypothetical solicitor and counsel costs may be included in that comparison.

The appellants had succeeded in earlier land-registration proceedings before the First-tier Tribunal and on appeal to the Upper Tribunal in Yarnold v Ziga [2023] UKUT 284 (LC). They were awarded their costs against the respondents.

On detailed assessment, the costs judge allowed Dr Razoq, who had represented the appellants as a litigant in person, £19 per hour, holding that he had not proved financial loss. The judge also applied the two-thirds cap by comparing each appellant’s work separately with the work of an assumed legal representative, excluding a possible allowance for counsel.

The appeal concerned whether the evidence established financial loss and whether the cap had been correctly calculated, including the cost of instructing counsel.

1. Appeal allowed on both issues. The costs judge’s determination of the applicable hourly rate was set aside because he failed to assess what Dr Razoq’s evidence established. The critical question was whether his litigation work prevented him from undertaking remunerative locum work.
2. Under rule 46.5(4)(a), the burden lies on the litigant in person to prove financial loss. The assessment must, however, engage with the evidence presented. Dr Razoq’s evidence that he was highly sought-after, that locum earnings depended on hours worked, and that the litigation could not be combined with his professional work was unchallenged. In the circumstances, the evidence established that he was unable to accept locum work, or as much work as he otherwise would have accepted, for substantial periods. The failure to consider that evidence was an error of law.
3. The evidence of Mr Jackman was admissible under rule 18(6)(a) of the FTT’s Rules. Any procedural inadequacy under CPR 32 PD 17 did not prevent the costs judge from considering it, because the FTT’s procedural rules applied and rule 8(2) permitted waiver of procedural requirements.
4. The two-thirds limit in CPR r.46.5(2) requires the tribunal to identify the total amount that would have been allowed if the litigant in person had been represented by a legal representative. It does not authorise separate comparisons based on the supposed roles of individual litigants. The appropriate starting figure was £76,455 for Grade A and Grade D work, producing a capped figure of £50,970.
5. The hypothetical represented costs could include counsel’s fees where, having regard to the complexity and subject matter, counsel would reasonably have been instructed. After allowing for counsel’s fees and the corresponding reduction in solicitor attendance, the recoverable total was £58,303. That figure also provided sufficient allowance for periods when litigation work did not cause financial loss.
6. The respondents were ordered to pay the appellants £58,303, together with the disbursements allowed by the costs judge. Any disputed costs of the appeal could be addressed by written submissions within 28 days, and the parties were directed to apply to the FTT for determination of the detailed-assessment costs.

• First-tier Tribunal (Property Chamber): The appellants succeeded in the substantive land-registration proceedings and obtained costs orders against the respondents. The costs judge later allowed Dr Razoq £19 per hour and applied the two-thirds cap by reference to separate assumed representatives.
• Upper Tribunal (Lands Chamber): The appeal from the costs determinations was allowed. The applicable-rate determination was set aside, and the recoverable costs were fixed at £58,303 plus allowed disbursements.