[2025] UKUT 293 (LC)

In the alternative the appellants contend that the FTT exercised its discretion at stage 2 wrongly. Here too the submission is that the basis upon which it did so was its observation,

“In our judgment this is a bad case. Obviously bad points were pursued vigorously. Serious allegations of fraud and bad faith were bandied about vexatiously. In our judgment, this is an appropriate case to exercise our discretion to make a costs order.”

It was submitted on behalf of the appellants that the FTT ‘had felt emboldened to do so’ with ‘its intemperate use of language’ at this point; and that the basis for it was not at all evident from the underlying judgment, and it was equally unclear what exactly the FTT had meant by ‘vexatiously’ in the context.

Before me it was not in dispute that the appellants’ case had been pursued with vigour. Nor could it be disputed that obviously bad points had been pursued in that way. The serious allegations of fraud and bad faith were evident from the judgments, and from other material including the skeleton argument mentioned above. To say they were bandied about is to say that they were made lightly, and carelessly or recklessly. Nothing before this Tribunal has suggested that this did not reflect the reality of the position. ‘Vexatiously’ was meant in its ordinary sense, namely, “designed to harass the other side rather than advance the resolution of the case.” That is a conclusion which the material shows was open to the FTT. The skeleton argument in particular proposes that the respondents were guilty of deliberate falsehoods designed to secure outcomes to which they were not entitled, harassment, unlawful eviction, fraud, bribery, modern slavery and so on.

Perhaps a differently constituted tribunal might have reached a different conclusion in the exercise of its discretion at stage 2. That, however, is nothing to the point, provided the FTT’s discretion was not exercised improperly, which it was not.

It is not for this Tribunal to substitute its own discretion. As already noted, if a tribunal “properly directed itself on the applicable law, took into account all relevant matters and was not swayed by irrelevant matters, and did not reach a conclusion which is irrational, it is not for us to substitute our own assessment.”