[2025] UKUT 320 (LC)

Rule 10(10) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (the Rules) provides as follows:

“(10)

An application for an order for costs may be made at any time during the proceedings but may not be made later than 14 days after the date on which—

(a)

the Tribunal sends a decision notice recording the decision which finally disposes of all issues in the proceedings;

(b)

the Tribunal sends notice under rule 20 (withdrawal) that a withdrawal which ends the proceedings has taken effect; or

(c)

notice of withdrawal is sent to the Tribunal with the consent of all parties.”

The reference in rule 10(10)(a) to a “decision notice” is to a decision notice given under rule 51. Rule 51(1) provides that the Tribunal may give a decision orally at a hearing, as occurred in this case. Rule 51(2) provides that the Tribunal must supply to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings a decision notice stating the Tribunal’s decision and informing them of rights of appeal. Rule 51(3) requires the Tribunal to provide written reasons for the decision with the decision notice unless the decision was made by consent or the parties have agreed to dispense with reasons.

In this case my decision notice was sent to the parties without my reasons on 16 April (the day the decision was delivered orally). A transcript of my oral decision was requested by Dr Steel, on behalf of the leaseholders, on 17 June. A complete transcript was received from the transcribers on 21 July and returned approved on 23 July. The perfected transcript was not published until the transcribers confirmed that their fee for preparing the transcript had been paid by the parties on 3 September.

On behalf of the appellants Mr Bates KC submitted that, on any view, the applications for costs received on 9 May were made outside the 14-day window allowed by rule 10(10), after which an application for an order for costs “may not be made”.

It was submitted in response by Mr Dovar, on behalf of the manager, that the time limit in rule 10(10) was not engaged as this was an appeal against a case management decision, which was an interim decision, and was not therefore a ‘decision which finally disposes of all issues in the proceedings.’ I do not accept that submission. The “proceedings” referred to in rule 10(10) are the proceedings in this Tribunal. That is clear from rule 1(2) which explains that the Rules “apply to proceedings before the Lands Chamber of the Upper Tribunal”. The fact that the proceedings are an appeal against a decision of the FTT which did not finally dispose of the proceedings in the FTT does not affect the date by which an application for costs may be made under rule 10(10).

The first and second respondents adopted the submissions of Mr Dovar. Through its solicitors, the second respondent also made some additional points. It explained that it had submitted its original application on the understanding that it had 1 month to do so pursuant to the analogous rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, which also accords with rule 13 of the FTT Rules. It apologised for its error in having regard to the wrong rules and that no prejudice had resulted. In any event, the reference to the date on which the Tribunal sends a decision notice recording the decision which “finally disposes of all issues in the proceedings” in rule 10(10)(a) of 2010 rules was ambiguous and might properly be interpreted in a number of ways. It was suggested that the reference to the “proceedings” may be either to the substantive proceedings in the FTT, or to the interim application in those proceedings from which the appeal has arisen. I do not accept either of those interpretations for the reasons I have given.

Alternatively, it was submitted that if “the proceedings” meant just the appeal to this Tribunal, the date on which those proceedings were finally disposed of should be taken to be the date at which the time for appealing the final decision of the Tribunal had elapsed. I do not accept that submission. The relevant date is the date on which the Tribunal “sends the decision notice recording the decision which finally disposes of the proceedings”. The date of sending the decision notice is a fixed date which does not change depending on whether a party pursues an appeal (although if an appeal was pursued, it might be the case that the decision notice recording the Tribunal’s main decision does not finally dispose of the proceedings and that time would run instead from the date on which the Tribunal determined the application for permission to appeal). In this case there has been no application for permission to appeal and the decision which finally disposed of the proceedings was my decision of 16 April. I do not think section 64(1)(c) of the Landlord and Tenant Act 1954 (which uses different language and does not refer to the sending of the decision but was nevertheless relied on as providing an analogy) assists in interpreting the different provision in the Tribunal’s Rules.

It was not submitted, as it might perhaps have been, that the decision notice sent on 16 April was incomplete, and that time did not begin to run until the Tribunal’s reasons were provided to the parties in writing on 3 September. I say no more about that possibility and conclude, on the submissions made, that the applications for costs were indeed made out of time for the reasons advanced by the appellants.