[2023] UKUT 108 (LC)

The first ground of appeal is that the FTT applied the wrong test. It referred in its paragraph 64 to “the exceptional circumstances envisaged by the Rule”, but there is no threshold of exceptionality in Rule 13.

I regard this ground as unarguable. The FTT in its paragraph 64, quoted at paragraph 26 above, used the word “exceptional” in the context not of defining the test but as a general description of the kind of circumstances where rule 13 is engaged. It was not at that point in its decision assessing the conduct of any of the respondents. From paragraph 66 onwards when it was assessing that conduct it referred consistently to “unreasonable conduct” and there can be no doubt that it applied the correct test.

Furthermore, as Mr Allison points out, the FTT’s reference to “exceptional circumstances” correctly highlights the fact that it should be unusual for an order for costs to be made at all. In WillowCourt at paragraph 62 it was said that the FTT “ is a costs shifting jurisdiction by exception only and parties must usually expect to bear their own costs”.

The appeal fails on this ground.