[2024] UKUT 253 (LC)

I now turn to the first of the two discretionary decisions. Should an order for costs be made? In this case proceedings have been brought either when they should not have been brought at all or when they could have been made in a form that was not hostile to the appellants who hold cluster units and that did not require them to make arguments about jurisdiction.

I disagree with what the FTT said at its paragraph 40 f (paragraph 44 above); faced with proceedings served by the FTT, relating both to the cluster units and the studios, and faced with contradictory written representations by the respondents about jurisdiction (paragraph 22 above) it is entirely unsurprising that the appellants who hold cluster units responded in relation to both types of unit. For the same reason I reject the respondents’ suggestion that the appellants themselves should have tried to resolve the jurisdiction point in correspondence after the FTT’s initial directions; the form of the respondents’ applications, and the content of their representations in November 2022, were such that it was entirely understandable that the appellants responded in full.

The course of action taken by the respondents caused unnecessary stress and expense and I take the view that an order for costs should be made.