Upper Tribunal considers costs claim of successful appellants

A litigant in person must establish financial loss if cost recovery is to be more than £19 per hour. The Upper Tribunal (Lands Chamber) has confirmed the legal position of a litigant in person when making costs orders in Nicholson and another v Hale and another [2024] UKUT 210 (LC). In June 2024 the appellants succeeded in overturning the First-tier Tribunal decision that the respondents had established a prescriptive right of way because the use relied upon had not been “as of right”. A sign had made it clear that the use was contentious. The respondents’ cross appeal was dismissed. The appellants claimed their costs of the proceedings in both the FTT and the UT. The respondents argued that the costs should be substantially discounted because the appellants had lost on significant issues; they had refused offers of alternative dispute resolution in relation to both sets of proceedings and having removed the staircase without prior warning they had not come to the FTT proceedings with clean hands. The Tribunal refused to apply an issue-based approach to the UT costs. While the appellants lost on one ground there was considerable overlap in the arguments and the costs would not have been materially different if that ground had not been pursued. In the FTT proceedings considerable time was taken up with whether the respondents could demonstrate the required 20-year use of the staircase on which they succeeded. The evidence and argument were not confined to the legibility of the sign, on which the appellants won, or the effect of the wording, on which they should have won. Consequently, it was fair to make a 25% discount on the appellants’ FTT costs. Both parties’ positions were entrenched from the outset and the dispute was always going to have to be resolved by the FTT and any appeal. The Tribunal made no discount for refusing ADR or in relation to pre-action conduct since the appellants were entitled to remove the staircase. The appellants claim of over £60,000 included 178 hours of the first appellant’s time at £130/hour. Under CPR 46.5 he could recover up to two-thirds of the sum allowed to a legal representative if he could prove financial loss. Otherwise, he was limited to £19 per hour. The Tribunal was not prepared to accept as proof of financial loss unsigned letters from his employer stating that he had spent time during office hours and used company resources which would need to be repaid. The appellants were awarded £22,558.42 with no order for costs of the costs hearing. Louise Clark is a property law consultant and mediator