[2025] UKUT 161 (LC)

The FTT ordered the appellant to reimburse the tribunal fees incurred by the respondents. He complains that in making that order the FTT took no account of the fact that he had offered to engage in mediation (at the suggestion of the FTT) but the respondents had not reciprocated. When this was pointed out to the FTT in the application for permission to appeal it said (wrongly) that mediation had not been raised, and that if it had been, it would not have affected the panel’s decision to order reimbursement of fees.

As I am setting aside the FTT’s decision it is not necessary to deal with this ground in any detail. I make only two points. First, the resolution of appropriate disputes by mediation should be encouraged, and a genuine offer of mediation which is not accepted is therefore a matter which can properly be taken into account when the FTT determines an application for reimbursement of fees. Secondly, a decision to order reimbursement of fees is a judicial decision which must be taken fairly; fairness requires that the unsuccessful respondent be given the opportunity (either at the hearing or after, but in any event before the decision is made) to make any points they wish to in answer to an application for reimbursement.