Costs recovery in the First-tier Property Tribunal

Melanie Burton, Park Law expert, shares the key points to take away from the recent First-tier Property Tribunal decision to award costs to the Applicant park owner.

What are the rules about costs?

The rules about recovery of costs in the Residential Property Tribunal are governed by the Tribunal (First-tier Tribunal) (Property Chamber) Rules 2013. Rule 13 allows the Tribunal to make an Order in respect of costs where it finds that a person has acted "unreasonably in bringing, defending or conducting proceedings."

The usual rule of thumb, therefore, is that both parties in a Tribunal case must bear their own costs.

Where recovery is permitted, the Tribunal has usually limited the scope of recovery to the application fee.

What was the case about?

The case in question concerned a disputed pitch fee proposal. The Tribunal determined the proposed new pitch fee was payable by the Respondent occupiers and the Applicant park owner went on to apply for an Order that the Respondents pay their costs.

The Tribunal found it reasonable to make an Order for costs against the Respondents, due to their conduct in both the current proceedings and the previous four sets of proceedings brought before the Tribunal, in which they had been involved.

In deciding whether the park owner’s application for costs was reasonable, the Tribunal adopted the approach set out by the Upper Tribunal in Willow Court Management Co (1985), Ltd, v Alexander (2016) referred to in the decision as ‘Willow Court’.

The Tribunal considered the circumstances of the case, having regard to the three-stage analysis set out in Willow Court.

Stage one – conduct in the proceedings

• The Respondents’ failed to engage with the Applicant on the substantive matters of the application before them, instead preferring to rely on arguments they had made in previous Tribunal applications. The Respondents, neither argued, nor submitted any evidence, challenging the Applicant’s pitch fee proposal.

• Despite the Respondents having taken part in previous Tribunal applications, and therefore considered being familiar with Tribunal directions, they submitted an email with a two-page statement repeating arguments previously determined by the Tribunal and no points relevant to the current application, which might be considered useful to the Tribunal.

• The Tribunal noted that the Respondents were advised by the Applicant to seek legal advice on the matter but failed to do so.

• There appeared to be no reasonable explanation for the Respondents conduct, and therefore passed the threshold of unreasonableness, set out in Willow Court.

Stage two - discretion

The Tribunal went on to consider the second stage of the Upper Tribunal decision in Willow Court, which emphasised that the power under rule 13 requires the exercise of a discretion. On consideration of the circumstances of the case, the Tribunal concluded that it should exercise its discretion in favour of making a costs order.

Stage three – amount of the costs awarded.

The final stage was to determine how much of the Applicant’s costs should be awarded. The Tribunal accepted the Applicant’s application for costs in respect of worked claimed, as being reasonable. The Respondents were ordered to pay the Applicant the sum of £2,520 plus VAT plus the application fee of £20.

What can we take away from this?

It should be borne in mind that this is a decision of the Lower-tier Tribunal and is not therefore binding on any other Tribunal.

That said, the decision in Willow Court is an Upper-tier Tribunal decision and will bind other Tribunals in similar circumstances. The decision is unlikely to bring about a change to the usual costs position in the Property Tribunal.

However, it does highlight the Tribunal’s apparent willingness to consider a costs order if the circumstances of the case warrant it.

Contact our park law experts

If you require legal advice in regard to a pitch fee dispute, or any other matter about your holiday or residential park, please contact our park law expert, Melanie Burton on 01752 292358 or mburton@wolferstans.com.