lp-2013-4

UPPER TRIBUNAL
LANDS CHAMBER
lp-2013-4
[24]On 25th March 2014 I handed down a Decision in the above case in which I came to the conclusion that the Application made by the Applicant, Ms Georgina Leander Swindells, was wholly without merit and should be dismissed. In paragraph 44 of the Decision I set out my reasons for that conclusion, namely that the evidence supported the Objector’s case, and that the restriction still serves its purpose and can in no sense be described as obsolete.[25]That being so, in a letter dated 4th April 2014 the solicitors instructed by the Objector (Messrs Band Hatton Button) made the request to the Upper Tribunal (Lands Chamber) that the Applicant be ordered to pay the Objector’s legal costs which as at the conclusion of the hearing amounted to £16,032.36. The breakdown of this cost is as follows – Cost of £10,110.30, together with VAT thereon of £2,022.06; counsel’s fees of £2,950 plus VAT of £590, and the expert’s fee of £300 plus VAT amounting to £60. In making the application for costs it is stated by Messrs Band Hatton Button that they were mindful that the Applicant’s application was judged to be wholly without merit. This was made on the basis of the conclusion contained in the report of the single joint expert, and that after the receipt of that report the Applicant declined to withdraw the Application and pay the Objector’s costs up to that stage. Instead she effectively required the matter to proceed to a full hearing.[26]In these circumstances the order sought by the Objector is that the Applicant should pay legal costs of the case on an indemnity basis, the amount of such costs be the subject to detailed assessment in the default of agreement.[27]Since the handing down of the Decision there has been some email correspondence passing between Messrs Band Hatton Button and Mrs Rainey, the Applicant’s lay representative, as to whether an agreement could be reached on costs and a consent order be drawn up. Unfortunately no such agreement has been achieved between the parties and it is stated by Ms Rainey that the Applicant could not possibly agree to such an “enormous figure” prior to a breakdown having been produced by the solicitors. In such circumstances a detailed breakdown of costs has been sought by Ms Rainey. In the meantime owing to time constraints it was necessary for Messrs Band Hatton Button to make an application for an order for costs - hence the letter dated 4th April 2014. In an email dated 9th April 2014 Ms Rainey has made representations in so far as the quantum of costs are concerned, in which a number of points are made not least relating to the cost of counsel engaged in the process on behalf of the Respondent. The thrust of this communication is in relation to the level of costs rather than the principle of payment. DECISION ON COSTS[28]In such circumstances, and having regard to the fact that the Applicant comprehensively lost her application, I consider that it is appropriate in the circumstances for cost to follow the event. I therefore order that the Applicant do pay to the Objector the cost of an occasioned by the application as a matter of principle. 2[29]Turning to the question as to whether or not such costs should be on the standard or indemnity basis, I am mindful of the provisions of Practice Direction No 12 of the Upper Tribunal, Lands Chamber, and in particular paragraph 12.4 which deals with the question of whether costs should be on a standard or indemnity basis. This provides as follows:
“The Tribunal will normally award costs on the standard basis. On this basis, costs will only be allowed to the extent that they are reasonable and proportionate to the matters in issue, and any doubt as to whether costs were reasonably incurred or reasonable and proportionate in amount will be resolved in favour of the paying person. Exceptionally the Tribunal may award costs on the indemnity basis. On this basis, the receiving party will receive all their costs, except for those which have been unreasonably incurred or which are unreasonable in amount, and any doubt as to whether the costs were reasonably incurred or are reasonable in amount will be resolved in favour of the receiving party”
[30]I appreciate that the words “wholly without merit” appear in paragraph 44 of the Decision, and it is to borne in mind that the Applicant originally agreed to the retention of a jointly instructed expert, and then subsequently disagreed with his findings. However, I must also bear in mind that the Applicant is a litigant in person who has been assisted throughout by Ms Rainey neither of whom (as they themselves have stated) are versed in matters of law. The Applicant’s concern is to try to develop the property she has purchased in Killamarsh, and in her perceptions her desires have been frustrated in being able to do so because of what she considers to be an “obsolete” restrictive covenant.[31]Having regard to all the circumstances I do not consider that this is a case where costs should be awarded on an indemnity basis as, in my judgment, the circumstances cannot be described as being exceptional. Indemnity costs are usually awarded in cases where it is necessary to indicate some form of disapproval with the behaviour of the party in question, and I do not consider that the Applicant’s conduct should be the subject of judicial disapproval in the present circumstances.[32]I therefore order that the cost should be awarded on the standard basis, and should be the subject of a detailed assessment in default of agreement. Dated 28th April 2014 Judge Edward Cousins 3