Practice and procedure – Rating appeals – Upper Tribunal – Simplified procedure – Appellant appealing to Upper Tribunal against rating decision – Parties agreeing appeal suitable for simplified procedure – Appellant withdrawing appeal shortly before hearing date and after exchange of experts’ reports – Whether that amounting to unreasonable behaviour within para 12.8 of tribunal’s Practice Directions – Whether justifying departure from normal position for simplified procedure and making of costs award in favour of respondent – No order for costs made
In late October 2013, the appellant gave notice to the Upper Tribunal that it sought to appeal against a decision of the Valuation Tribunal for England (VTE) with regard to the rateable value of commercial premises on an industrial estate in Swindon. The appellant’s agent submitted the tribunal’s standard form for a rating appeal, in which it requested the use of the simplified procedure and attached its statement of case, together with a copy of the VTE’s decision and supporting comparable evidence. The respondent valuation officer served a respondent’s notice agreeing that the case was suitable for the simplified procedure and, in February 2014, filed and served his statement of case. A hearing was then listed for June 2014 and the parties exchanged expert reports; the appellant received the respondent’s report in late May 2014.
Two days later, the appellant’s agent informed the tribunal that the appellant was withdrawing the appeal on the ground that, while it did not agree with the VTE’s decision, it could not afford the costs and risks attached to pursuing the case to a full appeal hearing. The respondent indicated that he would agree to the withdrawal of the case only if the appellant met his abortive costs of £2,700 for drafting the expert’s report, comprising more than 30 hours at £90 per hour.
The tribunal consented to the withdrawal of the appeal subject to further representations on costs. In written submissions, the respondent contended that the appellant’s late withdrawal amounted to unreasonable behaviour within the meaning of para 12.8 of the tribunal’s Practice Directions of November 2010, which justified the tribunal in departing from the usual position in relation to costs under the simplified procedure and awarding costs against the appellant. He submitted that all the information and relevant legal argument set out in his expert report had already been in his statement of case and that it had been unreasonable of the appellant’s agent, rather than making any meaningful attempt to discuss the case with the respondent, instead to wait and see what was in the expert report before advising his client to withdraw.
Held: The tribunal made no order for costs.
Parties to an appeal under the simplified procedure were expected to co-operate with each other and with the tribunal as openly and promptly as possible in order to avoid wasted costs. Any application for withdrawal of a case should be made as early as possible, both for the parties’ benefit and in order that judicial resources could be reallocated. The tribunal would consider applications for wasted costs where it considered that one of the grounds in the Practice Statement had been met, and it was open to the tribunal at any time to transfer a case to the standard procedure where it considered that the simplified procedure was being abused.
In the instant case, while there had been a lack of courtesy in the appellant’s conduct, the assessment of whether that was unreasonable behaviour had to take into account the fact that, even if the case had proceeded to a hearing and the respondent had been wholly successful on the substantive issue, costs would probably not have been awarded against the appellant. It was likely that the respondent would not have recouped the costs of the preparation of his expert report in those circumstances and, by withdrawing the case, the appellant had in fact saved costs both for itself and the respondent.
Moreover, the contention that the whole of the respondent’s case was contained in its statement of case served in February 2014, and that nothing of substance was added to that case by the expert evidence served in May 2014, was not easy to reconcile with the claim that 30 hours had been spent preparing that report after completion of the statement of case. Accordingly, there was no reason to depart from the normal position under the simplified procedure of making no order for costs on the facts of the case.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
