[2023] UKUT 271 (LC)

Following the Original Decision, the Appellant made an application to the FTT. I have not seen this application, but I assume that it was an application for a review of the Original Decision, so far as concerned the Section 20C Order, with an alternative application for permission to appeal against the Section 20C Order. I say this because the FTT, when they came to deal with the application, described it as an application for review or permission to appeal, and dealt with the application only in relation to the Section 20C Order.

In response to this application the FTT decided to exercise their powers of review pursuant to Rules 53 and 55 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. By their decision on this application, dated 30^th June 2022 (“the Review Application Decision”), the FTT decided as follows:

“In its original decision the Tribunal exercised its discretion under s.20C Landlord and Tenant Act 1985 although no application had been made. In their appeal the Applicants rightly raise this issue (ground 1) and the appeal is likely to succeed on this basis without the need to refer to ground 2. In the circumstances however the Tribunal do not consider it reasonable or fair for the Applicants to seek to recover costs from the leaseholders at Hippersley Point therefore the dispensation is granted on condition that they do not do so. The reviewed decision is attached. The same appeal rights apply to it. Alternatively, either party may apply to set aside this decision which was made without a hearing.”

On the same date, 30^th June 2022, the FTT also published the Reviewed Decision. The Reviewed Decision was in the same terms as the Original Decision, save for paragraph 16. Paragraph 16 of the Reviewed Decision is in the following terms:

“Accordingly, the Tribunal has no hesitation in confirming that dispensation should be given in this case. The Tribunal does however consider that the Applicants should be precluded from pursuing any costs in relation to this application from the leaseholders themselves. This is because dispensation is essentially a forbearance by the Tribunal and it would be unfair for the landlord to recover costs from any of the leaseholders living at Hippersley Point in the present case. Although not all of the leaseholders raised objections the Tribunal were satisfied that those that did were making general submissions which applied to all leaseholders. Accordingly, the dispensation is given on condition that the Applicants are prohibited from seeking their costs of this application from the leaseholders at Hippersley Point.”

Effectively therefore, and by the Reviewed Decision, the FTT reversed the Section 20C Order, but then proceeded to replace what had been the Section 20C Order with the Costs Condition.

The Appellant made a further application for a review of the Reviewed Decision, seeking the removal of the Costs Condition, or permission to appeal against the Costs Condition. The FTT, by decision dated 6^th April 2023, declined to exercise their powers of review and refused permission to appeal. Permission to appeal was, as I have said, granted by this Tribunal, by the Deputy President, by decision dated 13^th July 2023.