[2024] UKUT 00210 (LC)

This case is concerned with a dispute over whether a prescriptive right of way has been acquired by the Respondents over part of the Appellants’ property. The FTT, by a decision dated 20^th July 2023, decided that the right of way had been acquired by the Respondents and made an order directing that the Chief Land Registrar give effect to the Respondents’ application to register the right of way, as a prescriptive easement, against the title to the Appellants’ property. The case came before the FTT by reason of the decision of the Chief Land Registrar to refer to the FTT the application for registration of the claimed right of way.

The appeal and cross appeal against that decision (“the FTT Decision”) came before me on 14^th May 2024. I produced my decision on the appeal (“the Appeal”) and the cross appeal (“the Cross Appeal”) on 14^th June 2024. For the reasons set out in my decision (“the UT Decision”) I allowed the Appeal, on one of the two grounds advanced by the Appellants, and dismissed the Cross Appeal.

By an order made on 14^th June 2024 (“the UT Order”) I allowed the Appeal, on the basis of the ground of appeal identified in the UT Decision as Ground 1, and dismissed the Cross Appeal. I also set aside the FTT Decision and the consequential order of the FTT directing the Chief Land Registrar to register the right of way claimed by the Respondent. By the UT Order I re-made the FTT Decision as a decision that the claim to the Right of Way (as defined in the UT Decision) failed because the use relied upon by the Respondents had not been “as of right” for the required period of 20 years.

So far as costs before the FTT were concerned the FTT made an order (“the FTT Costs Order”) on 13^th November 2023 that the Appellants, as the unsuccessful parties in the FTT, pay the Respondents’ costs, summarily assessed in the sum of £10,481.60. The FTT Costs Order was stayed by the FTT, pending the outcome of the Appeal and the Cross Appeal.

By the UT Order I set aside the FTT Costs Order. There was however considerable disagreement between the parties as to what order I should make in relation to costs, both in respect of the proceedings in the FTT (“the FTT Proceedings”) and in respect of the costs of the Appeal and the Cross Appeal. In these circumstances I directed a further hearing to consider these various costs.

I heard the parties on the issues in relation to costs at a hearing on 17^th July 2024. The hearing was held on a remote basis. Mr Wilmshurst, counsel, appeared for the Appellants. The Respondents appeared in person. Mr Hale, the First Respondent, spoke on behalf of the Respondents.

This is my decision on the costs of the FTT Proceedings and the Appeal and the Cross Appeal, following the hearing on 17^th July 2024 (“the Costs Hearing”).

What follows is as short a statement as I can achieve of my reasons for the costs order which I have decided to make. The background to the Appeal and the Cross Appeal and my reasons for allowing the Appeal and the Cross Appeal are set out in the Decision. In these reasons I assume familiarity with the Decision and the FTT Decision. Save for the expressions defined in this decision on costs, defined expressions in the UT Decision have the same meaning in this statement of my reasons. I will refer to the Upper Tribunal (Lands Chamber), in which I am sitting, as “the Tribunal”. Italics have been added to quotations.

I repeat the point that my reasons for the decisions on costs which I have made are shortly stated in this decision. I received a good deal of documentation for this hearing, in the form of written submissions, statements of costs, authorities and other documents. I also heard oral argument which occupied half a day. All this was well in excess of what would normally be permitted in relation to argument over the costs of a case of this kind. While all of the material put before me (written and oral) has been taken into account in reaching this decision, my reasons are stated as shortly as possible, without detailed exposition.

So far as the costs of the Appeal and the Cross Appeal (“the UT Costs”) are concerned, I have jurisdiction to make a costs order in relation to the Appeal and the Cross Appeal because both were appeals from the FTT in relation to a reference by the Chief Land Registrar; see Rule 10(6)(g)(i) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.

I take the view that I have jurisdiction to make an order in relation to the costs of the FTT Proceedings (“the FTT Costs”). I take this view because, following my setting aside of the FTT Costs Order, I have the ability to re-make the FTT Decision pursuant to Section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. I have already exercised that power by re-making the FTT Decision as a decision that the claim to the Right of Way failed because the Use was not as of right for the required period of 20 years. I note that my powers under Section 12 include, where I am acting under subsection (2)(b)(ii), the power to make any decision which the FTT could have made if the FTT were re-making the FTT Decision. This seems to me include making a decision in relation to the FTT Costs.

In theory the FTT Costs could be remitted to the FTT for determination in light of the UT Decision. So far as the incidence of the FTT Costs was concerned, the parties were agreed that I should deal with the incidence of the FTT Costs for myself, rather than remitting this issue to the FTT.

Turning to the assessment of the UT Costs and the FTT Costs, the parties were agreed that I should make a summary assessment of the UT Costs, so far as I decided to make an order for their payment. The Appellants’ position was that I should also make a summary assessment of the FTT Costs, so far as I decided to make an order for their payment. The Respondents’ position was that I could make a summary assessment of the FTT Costs, but that I might take the view that their assessment raised issues which were better remitted to the FTT, for consideration by the Judge.

So far as both the incidence and assessment of costs are concerned, I am satisfied that I should decide the incidence and (so far as I decide to make an order for the payment of any costs) the assessment of both the UT Costs and the FTT Costs for myself. I do not think that it would be either proportionate or sensible to put the parties to the time and expense of a remission of the FTT Costs to the FTT. It seems to me that these considerations substantially outweigh the fact that, as I readily acknowledge, I have the disadvantage of not having heard this case in the FTT.

A complicating factor in relation to the Costs Hearing itself was that the Appellants’ claim for their costs included a claim for the costs of Costs Hearing itself. Prior to the Costs Hearing there was an exchange of correspondence between the parties, on a without prejudice save as to costs basis, which I understood to involve offers made in relation to the costs issues to be resolved at the Costs Hearing. The Appellants included this correspondence in their bundle of documents for the Costs Hearing. Fortunately, when reading this bundle, I noticed that the correspondence was on a without prejudice save as to costs basis, and did not read this correspondence prior to the Costs Hearing. My inability to consider this correspondence at the Costs Hearing, before I had made my decisions on costs, meant that I could not make a decision on the incidence of the costs of the Costs Hearing or, if required, on the assessment of the costs of the Costs Hearing until after I had made my decisions on the remainder of the costs.

In order to manage this problem, I deferred my decisions on the incidence and assessment of the costs of the Costs Hearing until after I had circulated this decision in draft to the parties, for corrections on the usual confidential basis. In addition to suggesting corrections to the draft version of this decision, I permitted the parties to make brief further submissions on the costs of the Costs Hearing, with the benefit of my decisions on the remainder of the costs, with those brief submissions including such reference to the without prejudice save as to costs correspondence as the parties wished to make. So far as the assessment of the costs of the Costs Hearing was concerned, I heard argument on the assessment of these costs at the Costs Hearing itself, without prejudice to the question of whether such assessment would be required.

Following circulation of this decision in draft form, the parties duly submitted brief submissions on the costs of the Costs Hearing, which made reference to the without prejudice save as to costs correspondence. This final decision on costs therefore includes my decision on the costs of the Costs Hearing. My decision on the costs of the Costs Hearing was not in the draft version of this decision circulated to the parties.

For the reasons explained in my three previous paragraphs, my decision on the costs of the Costs Hearing is to be found at the end of this decision. Where I refer to costs in the remainder of this decision, I am excluding the costs of the Costs Hearing from such reference, unless I indicate to the contrary.

Both parties were agreed that, in making my decisions on costs, I was entitled to apply the relevant provisions of the Civil Procedure Rules 1998 (“the CPR”). This rendered it unnecessary to address the question of what ability I have to apply the provisions of the CPR, in making my decisions on costs in relation to a case in the FTT and Upper Tribunal (Lands Chamber). A point I would make in this context is that I plainly do have a discretion as to the costs which I am considering in this decision. What I can say is that, in the exercise of my discretion over costs, it seems to me appropriate to apply the relevant provisions of the CPR, whether or not, technically, they apply to a decision of this kind.