Matier v Christchurch Gardens (Epsom) Ltd [2017] UKUT 56 (LC)
Joseph Ollech, instructed by Rachel Carfrae of Charles Russell Speechlys, acted for the successful respondent landlord in an appeal by a tenant against a costs order that had been made against him in the FTT pursuant to Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chambers) Rules 2013 on the ground that of acting unreasonably in the conduct of the proceedings.
This decision is an early example of the application of the guidance given in an important decision by the Upper Tribunal in Willow Court Management (1985) Ltd v Alexander [2016] UKUT 0290, and it is of particular interest because notwithstanding the restrictive approach that it had recently laid down, the Upper Tribunal nevertheless refused the tenant’s appeal and endorsed the FTT’s finding of unreasonable conduct. The Upper Tribunal delayed the determination of this matter, on written representations, until after it had handed down judgment in Willow Court Management.
A feature of particular importance in this case was the appellant’s complaint that the respondent’s solicitors had interfered with the presentation of his papers in their preparation of the hearing bundle and the time and cost this added to the proceedings and to the hearing overrunning its allotted time estimate. His approach to matters also led to extensive correspondence between the parties and the FTT in the lead up to the trial that would otherwise have been unnecessary. He was not in fact prejudiced in the presentation of his case because the respondent’s solicitors did also provide all of the material he had prepared to the FTT in its original non-compliant form. The true position was that the appellant had ignored the FTT’s clear directions as to the presentation of evidence, and failed to respond constructively when this was pointed out to him. In addition, the witness evidence and written submissions he prepared were extremely prolix and unfocussed.
The Upper Tribunal agreed that even “...Making every appropriate allowance for the fact that the material he wished to rely on had been edited and organised in a way inconsistent with his wishes, he nevertheless responded in an intemperate and unjustifiably aggressive manner.” The Upper Tribunal also agreed that even though the appellant acted without legal representation the material he provided to the FTT “...exceeded by a considerable distance what was reasonable and proportionate to deal with the six discrete issues raised in the proceedings”.
Although Willow Court Management does mean that orders for costs against litigants in person are likely to be rare, this decision demonstrates that in cases where there is particularly egregious conduct such orders may still be obtained.
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