[2023] UKUT 135 (LC)

Despite his acceptance that the decision of the FTT could not be supported in its own terms, Mr Hardman submitted that its decision should be confirmed. The FTT should, he suggested, have found that Mr Connell had behaved unreasonably in the following additional respects:

I doubt that it was necessary for these propositions to be included in an application for permission to appeal. They are points which support the FTT’s decision on different grounds, rather than seeking to reverse or vary it. They are not changed in character by adding a submission that the FTT was wrong to decline to determine them.

In my judgment, whether the FTT should have addressed these points or not, they provide no support for an order for costs against Mr Connell. Once it is appreciated that the application for recognition was the Association’s, and not Mr Connell’s, and that Mr Connell did not bring or conduct it, there is no basis on which an order could be made against Mr Connell personally. Heaping up yet more allegations of unreasonable conduct cannot lead to a different outcome.

In any event, none of the allegations made about the suggested motivation for bringing the original application are laid at Mr Connell’s door. They are directed much more generally at the Association and at Mr Fernie. Without them, the respondents were awarded their costs against the Association, but they chose to abandon that award; there is no merit in them now seeking to fix Mr Connell with responsibility on the basis of things done by others.

I make no criticism of the FTT for declining to adjudicate on the respondents’ conspiracy theory. The matters relied on in support of it were irrelevant to the disposal of the original recognition application, which ought to have been struck out by the FTT in 2020 without the need for any response from the respondents. It was clear on the face of the application that it was not supported by 50% of the qualifying tenants and as no order had been made by the FTT requiring the respondents to provide details of the other qualifying tenants it simply had no jurisdiction to issue a recognition certificate. The respondents could have made that point in a single paragraph but chose instead to inflate the proceedings by their own wholly disproportionate statement of case. They may have believed there was some good reason for that course of action but is difficult to avoid the suspicion that it was done simply in order to set up an application for costs.

The FTT did not need to deal with the extraneous allegations in the context of the application itself, and it would have been scandalous to devote further days of tribunal time to investigating them in order to determine the application for costs. I take this opportunity to repeat what was said by the Tribunal in Willow Court at [43], that applications for costs under rule 13(1)(b):

“… should not be regarded as routine, should not be abused to discourage access to the tribunal, and should not be allowed to become major disputes in their own right. They should be determined summarily, preferably without the need for a further hearing, and after the parties have had the opportunity to make submissions.”