Tribunal Costs: Recovery and Negotiation
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The English Legal System is a complex beast which has been developed over the course of a thousand years or so. Criminal cases are dealt with in the Magistrates/Crown Courts, but can also arrive in the High Court/Court of Appeal/Supreme Court. Civil cases are sometimes addressed by Magistrates, but may also be heard in the County Court system, with appeals to the higher Courts again possible. Tribunals exist alongside this framework.
The Tribunal System
The Tribunal system is two-stage and comprises of First-Tier Tribunals and Upper Tribunals. First Tier Tribunal hearings include the Health, Education and Social Care Chamber, the General Regulatory Chamber, the Tax Chamber, the Immigration and Asylum Chamber, the Property Chamber, and the Employment Tribunal.
Upper Tribunals generally hear the appeals from the First-Tier (e.g. Administrative Appeals Chamber, the Tax and Chancery Chamber, the Immigration and Asylum Chamber and the Lands Chamber). As with Criminal and other Civil cases, appeals can be thereafter, made to the Court of Appeal and Supreme Court. Whilst each Tribunal generally has its own set of rules, they are generally governed by similar legal costs principles.
In the First-Tier Tribunals, generally each party is to bear its own Tribunal costs, the Tribunal system having been set up to be approachable for non-legally trained lay persons.
For example, in the First-Tier Immigration and Asylum Chamber (FTIAC), rule 9(1) limits Orders for payment of costs to an amount no greater than any Tribunal fee paid under the Fees Order/any fee liable to be paid under that Order.
However, there are always exceptions to the rule. The Tribunals may make a wasted costs Order or otherwise a cost Order against a party whom has acted unreasonably. In the FTIAC, these rules can be found at 9(2)(a)/(b) for example. This is similar to the First-Tier Tax Chamber at rule 10(a)/(b) which modifies the position to allow for costs Orders for complex track/MP expenses cases (rule 10(a)/(b)). Rule 10 of the Tribunal rules for the First-Tier Tribunal General Regulatory Chamber also tweaks the general position to allow for a costs Order where the Respondent is the Charity Commission, Gambling Commission or Information Commissioner and the decision is considered unreasonable.
Employment Tribunal claims are an example of where the employment Tribunal costs rules are more complex; rules 74 – 84 of the Tribunal rules addressing costs/preparation time Orders where the conduct is considered unreasonable under rule 76(1)(a), and the level of time spent is necessary to be considered.
Tribunal Costs and Unreasonable Conduct
In terms of when a wasted costs or unreasonable conduct Order is appropriate, the Presidential Guidance Note No.2 of 2018 alongside the key decisions in Cancino  UKFtT 00059, Awuah and Others (Wasted Costs Orders)  UKFtT 555 (IAC) and the unreported decision in Awuah and Others (2) can be used to provide assistance.
In respect of wasted Costs Orders, there must be a causal connection between the impugned conduct and the costs unnecessary incurred by the aggrieved party (1.3 of the guidance note no.2 of 2018). As to unreasonable conduct, the basic test is whether, under due scrutiny, the conduct has a reasonable explanation (2.1 of the same guidance note), the decision in Sinclair v 231 Sussex Gardens Right to Manage Ltd providing a good case study of where conduct was considered rule 13(1)(b) unreasonable in the First-Tier Tribunal Property Chamber.
In respect of the Upper Tribunal, unreasonable conduct and wasted costs Orders remain a possibility for applicable claims (rule 10(1)(b), 10(3)(c) and 10(3)(d)/(e)/(f)). In addition, costs are also specifically recoverable in cases involving national security certificate appeals (rule 10(1)(aa)), matters on transfer/appeal from the First-Tier Tax Chamber complex track (rule 10(1)(a)) and judicial review claims (rule 10(3)(a)).
Detailed Assessment in the Tribunal
When an Order for detailed assessment of costs is made in either the First-Tier Tribunal or the Upper Tribunal, the County Court, High Court or SCCO will assess the same. The usual principles found within CPR 44.3(5)/CPR 44.4(3) and the decisions in tribunal cases, such as in Malmsten v Bohinc , East Sussex Fire and Rescue Service v Austin and May v Wavell Group Ltd apply. Challenges such as in relation to proportionality, hourly rates, legal expenses, expert fees etc are, therefore, in play in the usual manner.
The Tribunal rules generally prohibit the recovery of substantial inter-partes Tribunal costs, save as to where unreasonable conduct has occurred, or where an exception applies. Where the Court does Order you to pay Tribunal costs, the usual CPR principles will apply.
The various Tribunal rules, thus, act as both a sword and a shield – the sword to seek costs sanctions where appropriate and the shield to generally protect a party from adverse costs risk. It is crucial to be aware of the duality of the Tribunal costs rules in progressing any cases in the Tribunals.
How Can ARC Costs Assist with Tribunal Costs?
ARC Costs can assist in the recovery or negotiation of tribunal costs. We can assist both paying parties and receiving parties on all types of tribunal costs cases.
Our Costs Draftsmen can assist by providing costs budgets, bills of costs and costs negotiations services. Our Costs Lawyers also hold expertise in providing representation at Court hearings, such as at detailed assessment or any CCMC.
To find out more about the services that we offer please use the free chat facility to speak with one of our experts. Alternatively, we are available via email at email@example.com, or can be contacted by phone on 01204 397302.
Our Costs Lawyers are authorised and regulated by the Costs Lawyer Standards Board, and this ensures that all our clients receive a first-class service. Please refer to our case studies page to find out how we have assisted other clients.
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