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TOLATA Claim Costs and Recovery of the Same

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What is a TOLATA Claim?

 

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides the Court with the power of dispute resolution regarding property or land ownership. A claim under TOLATA can be issued to force a sale of land or property, to reoccupy a family home or to determine the share owned by each person.

It should be noted that a TOLATA Claim can be issued both under Part 8 or Part 7 proceedings. The most suitable proceedings to issue will be determined by the circumstances of the case.

A TOLATA Claim or dispute usually arises between unmarried partners who are legal owners of a property. These cases can arise when one party seeks an interest in the property, such as equal shares in the property. Whilst this is not a family law matter, you will require a solicitor who is authorised and regulated by the solicitor’s regulation authority to deal with dispute resolution.

 

TOLATA Claim Costs

 

Costs will inevitably be incurred throughout the course of dealing with the case. If the TOLATA Claim is issued under Part 7 and allocated to the Multi Track, then the Costs Budgeting process will apply where the parties are required to exchange costs budgets. The same orders can be made by the Court if the TOLATA Claim is issued under Part 8.

The Court may make a costs management Order which will limit the costs entitled to be recovered to the sums included in the budgets prepared. Should the parties fail to provide costs budgets where they are required, this can result in costs sanctions.

The recovery and entitlement to costs, however, is the same whether the TOLATA claim is brought under Part 7 or Part 8 proceedings. The general rule of thumb is that the successful party is entitled to recover their costs from the losing party as per the Civil Procedure Rules 44.2 (2) (a).

However, the Court may make an order for costs which does not follow the general rule. It is the Court’s discretion to consider the parties’ conduct, whether a party has succeeded in the whole of the claim or only party of the claim and any settlement discussions between the parties when assessing what costs order to make.

CPR 44.2 (4) provides a list of circumstances for the Court to consider when making a costs order:

 In deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including—

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the Court’s attention, and which is not an offer to which costs consequences under Part 36 apply. 

Furthermore, CPR 44.2 (5) provides a list of what the conduct of the parties may include.

 The conduct of the parties includes—

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

The starting point is to ensure that your case has merit of being successful prior to bringing a TOLATA Claim. It is also worth ensuring good conduct of the case throughout the proceedings as per the above quoted CPR guidelines to ensure a costs order is not made against you.

 

How Can ARC Costs Assist?

 

When recovering your costs under Part 7 or Part 8 proceedings, you will be required to provide a detailed Bill of Costsnegotiate the costs included within the Bill of Costs and sometimes, if no agreement can be reached between the parties, you will be required to attend Detailed Assessment whereby the Court will assess your reasonable costs and the amount to be awarded. As specialist Costs Draftsmen and Costs Lawyers, ARC Costs can assist you throughout the costs process.

Should your case require a costs budget during the action, we can assist in preparing an accurate and detailed costs budget detailing your costs for each phase of the proceedings.

We hold experience in assisting both receiving parties and paying parties. If a costs order has been made against you or you are liable to pay costs following proceedings, we can assist in ensuring the receiving parties’ costs are disputed by way of Points of Dispute.

Should you have a query you would like to discuss or require our assistance in a costs matter; please contact us using the contact forms on the website, email us at info@arccosts.co.uk or call us on 01204 397302.

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info@arccosts.co.uk

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