[2025] UKUT 00300 (LC)

Both sides claim their costs.

SEPD relies on a written offer it made to Mr Nelson on 12 May 2025, offering to settle the claim at compensation of £50,000 plus a contribution to the fees of Mr Nelson’s expert, Mr John Davies, of £15,000. SEPD says that its costs of the reference were £184,303.80 plus VAT, and it claims costs incurred after the offer of just over £100,000 plus VAT, or in the alternative 30% of its costs of the reference.

Mr Nelson claims £48,375, comprising £21,850 for the cost of his expert Mr Davies, £25,749.38 for his own time (232.5 hours at £110.75 per hour), and £776.50 in disbursements.

In response, SEPD submits that if Mr Nelson is awarded the costs of his time, first, these should be limited to the time incurred up to the date of its offer to settle – considered below, and secondly that since no evidence of loss has been submitted, the amount awarded should be at £19 per hour, in line with the normal approach followed by the Tribunal, for example in my decision in Golf Café Bars Limited v West Yorkshire Combined Authority and Network Rail Infrastructure Limited [2021] UKUT 0048 (LC). It submits that the hours claimed by Mr Nelson and costs of copying are excessive given that SEPD prepared the hearing bundle, and that many hours were incurred in repetition of material already submitted. It appears to take no issue with Mr Davies’s fees.

SEPD says that while under Rule 10(2)(b) a costs order must be in accordance with s.4 of the 1961 Act, Rule 10(3)(b) is not displaced; it cannot have been the intention of Parliament to preclude an acquiring authority from also recovering costs which have been incurred through the unreasonable conduct of the claimant under Rule 10(3)(b), in relation to which the Tribunal retains a discretion. It asserts that Mr Nelson’s conduct has been unreasonable during the course of the reference, and that it should be awarded its costs at least in relation to the most egregious instances, including failing to complete a settlement deed which had been agreed at mediation, for which SEPD incurred costs of £62,362 plus VAT, plus £34,500 plus VAT since the abortive mediation. A further instance of Mr Nelson’s allegedly unreasonable conduct was his unsuccessful application to strike out the proceedings (for which SEPD incurred costs of £1,352).