BIRDLIP LIMITED v GRAHAM AND CHARLOTTE LISTER; CHRISTOPHER VEYS AND DEBORAH VEYS; JOHN PURSSELL AND ANN PURSELL; DUNCAN HOWE AND CAROLINE HOWE; ROBIN PARKER AND KIRSTY PARKER; RICHARD FODEN AND RACHEL WALTON; ANDREW HUNTER; NEIL MATHERS [2016] UKUT 364 (LC)
[1]On 28 June 2016 the Court of Appeal handed down a judgment allowing the appeal against my decision that there was an enforceable scheme of development. On the same day the solicitor for Birdlip emailed the UT inviting it to make an order debarring the objectors from objecting to its s 84(1),[2]to award Birdlip its costs of the s 84(3A) hearing on a standard basis to be awarded against each of the objectors jointly and severally.[3]To deal with the s 84(1) application without a trial.[2]In the email the solicitor made the point that the usual costs order in a s 84(3) hearing is that costs follow the event.[3]On receipt of the email I invited a response from the objectors to the application and indicated that I would deal with the application as a paper application on receipt of the responses.[4]I have received responses from Richard Foden, Graham and Charlotte Lister, Anthony Purrsell, Christopher Veys, Nick Howe, Kirsty Parker Andrew Hunter (including submissions from Counsel) and Neil Mathers all of which I have read. 2 Order debarring the objectors[5]As is pointed out in a number of the responses this is covered in paragraph 3 of the order of 24 March 2015. As a result of that order the objections are already dismissed and it is unnecessary to make a further order. The application is accordingly refused. 3 Costs[6]Costs of proceedings under s 84 are governed by paragraph 12 of the Practice Direction dated November 2010 which provides: 12.5. Applications under section 84 of the Law of Property Act 1925 1) On an application to discharge or modify a restrictive covenant affecting land, the following principles will be applied in respect of the exercise of the Tribunal’s discretion regarding liability for costs. 2) Where an applicant successfully challenges an objector’s entitlement to object to an application, the objector is normally ordered to pay the applicant’s costs incurred Page 3 in dealing with that challenge, but only those costs. Where an applicant unsuccessfully challenges an objector’s entitlement to object to an application, the applicant is normally ordered to pay the objector’s costs incurred in dealing with that challenge. 3) With regard to the costs of the substantive proceedings, because the applicant is seeking to remove or diminish particular property rights that the objector has, unless they have acted unreasonably, unsuccessful objectors to an application will not normally be ordered to pay any of the applicant’s costs. And successful objectors will usually be awarded their costs unless they have acted unreasonably.[7]This case falls within paragraph 12(2) and thus I accept that the normal order would be that costs follow the event. However, I take the view that the appropriate order in this case is that there should be no order as to costs for the following reasons:[1]The proceedings were not necessary at the time they were issued. It would have been more proportionate for Birdlip to take the High Court action to its final conclusion before issuing the application under s84(1). Alternatively, the s84(3) hearing should have been adjourned pending the outcome of the High Court action.[2]In the light of the Court of Appeal judgment in the High Court action this land is not affected by any covenant. In those circumstances there is no jurisdiction under s 84(1) at all. The jurisdiction only arises to land “affected by any restriction …”. If there is doubt as to whether land is so affected it is possible to apply for appropriate declarations under s 84(2). That is what happened here. However, no doubt for good commercial reasons, Birdlip chose to bring 2 sets of proceedings at the same time when (as it has turned out) the UT has no jurisdiction in respect of one of them. I do not see why the objectors should be penalised in costs in those circumstances.[3]There is no suggestion that any of the objectors have behaved unreasonably. They have been driven to object by the stance taken by Birdlip who, for no doubt commercial reasons, were anxious to get a resolution as quickly as possible. 4 Disposal[8]In the light of my view set out above I am of opinion that the application under s 84(1) should be dismissed on the basis of lack of jurisdiction. However, I am willing to reconsider this in the light of any written representations made by Birdlip within 14 days of receipt of this decision. H H Judge Behrens 29 July 2016