[2023] UKUT 135 (LC)

This is an appeal by Mr Michael Connell, the secretary of a tenants’ association, against an order of the First-tier Tribunal (Property Chamber) (the FTT) requiring him personally to pay costs incurred by the respondents in the association’s unsuccessful application for a certificate of recognition under section 29, Landlord and Tenant Act 1985 (the 1985 Act). The application was withdrawn before it was determined, and the order was made on the basis that the secretary had acted unreasonably in bringing and conducting the proceedings.

Section 29 of the Tribunals, Courts and Enforcement Act 2007 gives the FTT power to make orders for costs, subject to Tribunal Procedure Rules. The relevant rule is rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the FTT Rules) which limits the circumstances in which such an order may be made. By rule 13(1)(a) the FTT may make an order against a legal or other representative in respect of costs incurred by a party as a result of any improper, unreasonable, or negligent act or omission on the part of that representative. By rule 13(1)(b) it may also make an order in a residential property case “if a person has acted unreasonably in bringing, defending or conducting proceedings”.

The respondents, in whose favour the FTT’s order for costs was made, do not now seek to uphold the decision on the grounds relied on by the FTT itself. They nevertheless submit that additional material which was not relied on by the FTT should be taken into account and justifies the making of the order.

At the hearing of the appeal the appellant was represented by Ms Kerry Bretherton KC who had not been involved in the proceedings before the FTT. The respondent continued to be represented by Mr Jeff Hardman as it had been before the FTT.