Practice and procedure – First-tier tribunal – Costs – Appellants registering possessory title to plot of land – Respondent as personal representative of paper owner applying to close possessory title – Application referred to first-tier tribunal and decided in favour of respondent – Respondent awarded costs on standard basis subject to detailed assessment – Whether tribunal judge wrongly considering value of plot irrelevant to costs order – Appeal dismissed
In 2010, the appellants registered a possessory title to a plot of land in Waterlooville, Hampshire, to which they claimed to have acquired title by adverse possession. The respondent was the daughter and personal representative of the paper owner, who had died in April 2011. She applied to the Land Registry to close the appellants’ possessory title and, since the appellants objected to that application, the matter was referred to the first-tier tribunal (FTT).
The FTT judge found that the appellants could not establish the necessary period of adverse possession, since their use of the land had been with the permission of the owner prior to 2007 and they had thereafter acknowledged the title of the paper owner on several occasions. He concluded that the respondent’s title was not barred and that she was entitled to closure of the appellants’ possessory title.
The judge then invited the parties to make written submissions on costs, indicating that he was minded to order the appellants to pay the respondent’s costs, to be subject of a detailed assessment on the standard basis if not agreed, and with an order for an interim payment of £10,000 on account towards those costs.
In their written submissions, the argued that the respondent’s costs were disproportionate to the value of the land in dispute and that the judge should take into account the appellants’ means and the respondent’s allegedly unreasonable conduct in failing to negotiate properly for the sale of the property to them.
After considering the appellants’ submissions and those of the respondent, the judge proceeded to make a costs order in the terms which he had previously indicated, pursuant to r 13 of the Tribunal Procedure (First Tier Tribunal) Property Chamber) Rules 2013. In reaching that decision, he indicated that the issue of the value of the land was irrelevant to the costs order and that, where the respondent had succeeded in her application to close the possessory title, she should on the face of it be awarded her costs. The appellants appealed.
Held: The appeal was dismissed.
(1) Para 13 of the 2013 Rules, and para 9 of the July 2013 Practice Direction (“Practice Directions Property Chamber, First Tier Tribunal Land Registration”) which supplemented it, were modelled on and in large part reflected the relevant costs provisions of the Civil Procedure Rules (CPR) in CPR 44. The starting point was that the unsuccessful party would pay successful party’s costs, although the FTT had a discretion to make a different order, and in exercising its discretion, should have regard to all the circumstances of the case including the conduct of the parties, the degree of success and offers to settle.
(2) The only provision in the 2013 Rules and the Practice Direction which expressly required the value of the property to be taken into account in relation to costs was in para 9.3(d)(ii) of the Practice Direction. That provision only directed the FTT to have regard to the value of the property in assessing the costs and there was no corresponding provision relating to the FTT’s discretion as to what costs order to make, or in relation to the basis on which such costs were to be assessed. It followed that there was nothing which required the judge to take account of the value of the property in deciding who, as between the appellants and the respondent, should bear the costs of the proceedings or, having reached a conclusion on that issue, the basis on which such costs should be assessed.
(3) The value of the plot was not a material consideration for the judge in reaching his substantive decision and he had heard no evidence as to value, although he had seen certain documents relating to it. He was not required to reach a decision as to the value of the property and was entitled to conclude, in the exercise of his discretion, that the value had no part to play in the assessment of the parties’ conduct or their reasonableness in the litigation itself. He had been entitled to conclude that costs should be awarded to the respondent on the standard basis.
(4) The fact that the judge was not required to take account of the value of the property in deciding what costs order to make did not mean that would be irrelevant when it came to the assessment of those costs on the standard basis in accordance with his order. That assessment was not a matter for the judge to deal with but was reserved for the detailed assessment, when it would be determined by the appropriate costs officer having regard to para 9.3(d)(ii) of the Practice Direction. The matter would have been different had the judge decided to assess the costs summarily himself; in those circumstances, he would have been obliged to take account of the value when considering questions of proportionality.
(5) The judge had given adequate reasons for his costs order. While his reasons were short, he had made it plain that he had considered the factors raised by the appellants; the proper inference was that he had directed himself according to the 2013 Rules and the Practice Direction and had come to a conclusion which was well within the breadth of discretion which they afforded to him.
(6) The interim payment which the judge had ordered fell within the broad discretion conferred by r 13(9) of the 2013 Rules. An interim payment should be a reasonable sum determined in accordance with the jurisprudence on the equivalent provision under the CPR, which required the court to reach a view as to the approximate sum that the receiving party was likely to be awarded. It was a proper exercise of a judge’s discretion to order such a payment even where the financial circumstances of the paying party were limited. The interim payment in the instant case, being approximately one-third of the total sum claimed in respect of costs by the receiving party, was within the range of figures which it was open to the judge to reach.
The appellants appeared in person; Christopher Semken (of Verisona Law, of Waterlooville) appeared for the respondent.
Sally Dobson, barrister
