[2025] UKUT 293 (LC)

The appellants rightly submitted that while it is well-established (Barton v Wright Hassall LLP [2018] UKSC 12) that the same rules apply to litigants as to professional litigants, the fact that a litigant acts without legal advice is relevant at the first stage of the enquiry: Willow at para. 32 ff. The reasons are obvious. They have probably not had the years of training and practice in making arguments, or dealing with evidence, in a way which Courts and Tribunals find attractive, clear and easy to follow. They have probably not had the opportunity of learning the law, and identifying the relevant law, that professionals have had. They may not understand the procedure or practice of the court or tribunal, and it is likely in any event to be unfamiliar. They are unlikely to have the detachment from the issues which a professional representative will have, and it is all too common for litigants in person to be overwhelmed by a combination of these factors when actually facing the tribunal or, before that, when having to put their case together or respond to that of their opponent. That can render them prone to act out in a variety of ways, some of which would represent unprofessional or unreasonable behaviour in a legal professional.

The appellants complain that while the FTT reminded itself that they were represented, it had wrongly gone on to judge them more severely on the grounds that both were intelligent, Mr Coogan was a property professional, and Mrs Coogan an impressive lay advocate. This complaint is not borne out. The appellants were being contrasted with unrepresented litigants who were not as intelligent, and did not have experience in property. The FTT was locating them within the spectrum unrepresented litigants, and was plainly doing so in order to consider what behaviour was properly to be expected of them, in the context of reasonableness. It was plainly right to do so.

The appellants further complain that the FTT alleged that Mr Coogan was willing to say whatever suited his purpose, regardless of its truthfulness, while there was simply nothing in the substantive judgment amounting to a specific finding that Mr Coogan had given dishonest evidence. In any event, what the FTT had said did not amount to an allegation of dishonesty, but only to one of carelessness.

The first thing to observe here is that Counsel’s repeated reference to an allegation on the part of the FTT is misdirected: it was a finding of fact. When this was pointed out, Counsel accepted that he was not seeking to disturb the findings of fact made by the FTT.

Counsel sought to argue that this finding did not amount to a finding of dishonesty but only of carelessness. In the course of submissions, he sensibly accepted that the most he could say was that it was only a finding that Mr Coogan had been reckless about whether what he was saying was truthful or not. He appeared to submit that this did not amount to dishonesty. Since the classic definition of the tort of deceit involves the tortfeasor in making a misrepresentation which he either knew to be untrue or made recklessly, not caring whether it was true or not, the Tribunal is unable to accept this submission. The FTT had plainly found as a fact that Mr Coogan had been dishonest.

Counsel submitted that the FTT had not been specific about the occasions upon which Mr Coogan had been being dishonest. It was not wholly clear where this submission went, given his acceptance that it was a finding of fact, and that he was not seeking to disturb findings of fact. Nor was this Tribunal given the opportunity of forming its own view by the provision of a transcript of the evidence. It is clear that the fact it had concluded that serious allegations of unlawful and criminal behaviour had been repeatedly made by the appellants against the respondents, and pursued even when they were clearly hopeless; and that given the intelligence and experience of the appellants, this could not be put down to ignorance or a lack of intelligence, and was therefore to be understood as behaviour they knew to be unjustified, and which was therefore unreasonable.

Counsel submitted that this Tribunal should have regard only to the substantive judgment and the costs judgment of the FTT when considering whether the FTT was right to accuse the appellants of pursuing hopeless allegations, doing so vexatiously, and in circumstances where they were implausible, unsupported, or irrelevant; and in particular making unfounded allegations of harassment, fraud and other improper behaviour, with reference to the Bribery Act and the like, pursuing nonsensical interpretations of events which were objectively benign, and adopting hopeless position. His point was that those judgments reflected none of those features.

This submission cannot be sustained either. Paragraphs 7 to 14 of the costs judgment is to be read in the context of the submissions summarised in paragraphs 5 and 6 of that judgment. The costs judgment as a whole is to be read in the context of the substantive judgment. The substantive judgment refers, of course, to other material, and in particular to the appellants’ skeleton argument and notice pursuant to section 22 Landlord and Tenant Act 1987, in which many of the allegations to which the FTT referred were repeatedly and emphatically contained.

Nothing in that material supports the proposition that the FTT was wrong in considering that the appellants had acted unreasonably in the way in which they brought their application and conducted the matter.

It is perfectly true that the costs decision of the FTT relied in part upon having seen Mr Coogan give evidence. That is a matter as to the evaluation of which the FTT was in a better position than this Tribunal could ever have been. Since the appellant elected not to obtain a transcript of the proceedings before the FTT, this Tribunal is not in a position to form a view about that at all; but that does not assist the appellants, since the burden is on them to establish that the FTT’s decision was wrong.

It was submitted on behalf of the appellants that because the respondents had themselves, after all, voluntarily engaged a manager, and that it was the same individual as had been proposed by the appellants, the appellants’ approach to the application for a manager should be understood as having been vindicated. That simply does not follow. In the context of the FTT’s evaluation of the appellant’s approach, it is an unattractive, as well as an ill-founded, submission.

Accordingly, this Tribunal concludes that the appeal on the basis that the FTT was wrong to conclude that the appellants’ behaviour in bringing their applications and conducting their case was unreasonable must fail.