[2025] UKUT 320 (LC)

The appellants submitted that, in principle, it would be wrong to award costs in favour of three respondents who took a materially common position on the appeal, yet who put in three separate statements of case, without attempting to isolate those points (if any) which are unique to any particular respondent. That was said to be a repetitive and disproportionate approach.

I bear in mind that Mr Unsdorfer, the third respondent, is a tribunal appointed office holder, who is independent of the parties. He is not the leaseholders’ manager. He has always taken his own advice and acted with separate representation. There is nothing inappropriate about that and it would not have been straightforward for him to join forces with the leaseholders for the purpose of the appeal; negotiating the boundaries of such an arrangement would also have come at a cost. The manager has incurred the bulk of the costs of the appeal on the respondents’ side and any trimming on the grounds of duplication would appropriately fall on the other respondents; but I am satisfied they have taken a proportionate approach, the leaseholders in representing themselves, with direct access counsel’s assistance, and Circus Apartments in limiting their participation to written submissions.

On behalf of the members of the residents’ association Dr Steel has asked for an order for payment of their counsel’s fees for acting in connection with the appeal (they otherwise act without legal representation). These total £17,760 inclusive of VAT and reflect a capped rate for the preparation of written material. The appellants complain that this was too high for “junior” counsel and suggest the leaseholders should recover no more than half the fee appropriate for leading counsel. They have not, as far as I can see, disclosed how much their own leading counsel charged, but all counsel in this matter are senior specialist practitioners. I see nothing unfair or unjust in the appellants paying the professional costs incurred by the residents’ association in full and I will so order.

Circus Apartments did not attend the hearing of the appeal but seeks to recover the costs of its solicitors in considering the appellants’ application to the Tribunal for permission to appeal, preparing and serving its respondent’s notice and statement of case, considering the parties’ skeleton arguments and corresponding with the parties and the Tribunal about logistics for the appeal. It also seeks to recover the costs incurred in this application for costs. These total £10,173, a sum described by the appellants’ solicitors as “eye-watering”. I bear in mind the limited role taken by the second respondents and that they have a purely commercial interest in Canary Riverside. Having considered the material supplied in support of the claim I will order that the appellants pay the second respondent £5,000 in respect of its costs.

The Manager seeks all his costs of the appeal totalling £40,867.80, including VAT, of which £19,200 is referable to counsel’s fees. The appellants complain that the manager had described his stance on their application to the FTT as neutral, and that he should not be entitled to his costs. I disagree. The manager may have been neutral before the FTT, as at that stage the relief sought by the appellants was not inconsistent with the relief he sought. Success for the appellants in the appeal, however, would have been very disruptive and would have derailed the parties’ preparations for the final hearing in the FTT. The manager was perfectly entitled to resist the appeal.There is more substance in the appellants’ observation that 90% of the solicitors’ time charged for was incurred by Grade A solicitors, on top of counsel, which was disproportionate. Proportionality has only a limited part to play in determining the costs payable on an application under rule 10(3)(b), but I give some weight to that criticism. Having considered the material supplied in support of the application I will order that the appellants pay the manager £30,000 in respect of his costs.

In summary, therefore, the appellants shall pay £17,760 to the first respondent, £5,000 to the second respondent, and £30,000 to the third respondent. All such sums are payable within 14 days.