[2024] UKUT 399 (LC)

The sole ground of appeal for which permission has been granted is whether the conduct found by the FTT to have been unreasonable met the objective standard of unreasonable behaviour capable of justifying an order for costs under rule 13(1)(b). The ground is couched in terms which reflect the Tribunal’s guidance in Willow Park, at [28], that the first matter to be determined on an application under the rule is whether a party had acted unreasonably. That determination does not involve an exercise of discretion “but rather the application of an objective standard of conduct to the facts of the case”.

As the Tribunal acknowledged in Willow Park, at [24], “an assessment of whether behaviour is unreasonable requires a value judgment on which views might differ”. For an appellate tribunal to interfere with that assessment, it must be satisfied that it was not an assessment which a tribunal, properly directing itself in law, could have reached.

The appellant challenged the FTT’s assessment and contended that it was not possible to characterise its conduct of the proceedings as unreasonable. It emphasised that the “lack of engagement” after 6 March was mutual, and that the appellant had withdrawn the counter-notice as soon as the respondent had filed its evidence and the appellant had had an opportunity to consider it. It had explained why it had taken a week for that assessment to be made, partly because the material had been sent to the managing agent rather than to Scott Cohen and partly because of the religious holiday.

In response, the respondent accepted that the appellant had been entitled to put it to proof that it satisfied the qualifying conditions for acquisition of the right to manage. It nevertheless complained that the appellant had gone further than put it to proof and had made a positive assertion that the Premises did not qualify. It also maintained that the appellant’s point had been answered by the respondent on 6 March in its statement of case in reply, which had included planning documents. It was said to be unreasonable for the appellant not to have responded to this material when it could have done on 27 March, and unreasonable for it to have persisted in the self-containment point after it was refused permission to adduce expert evidence, which refusal was said to have left it “without any evidence to rebut the assertions made by the RTM company”. The point should have been conceded shortly after 6 March and no new information had been provided after that date.