John Romans Park Homes Ltd v Mr Hancock, Mrs Hancock (02 Dec 19, unreported).
Our grateful thanks to Amanda Gourlay for her note on this appeal.
This matter concerned the Mobile Homes Act 1983, but the point is of far broader application. The case was a possession claim in the county court, which was transferred to the First Tier Tribunal on the issue of whether the Mobile Homes Act 1983 applied. Both the First Tier Tribunal and the Upper Tribunal found for the defendants and on its return to the county court the possession claim was dismissed. The county court awarded the defendants their costs of the claim, including their costs in the Tribunals, finding that it could do so under s.51 Senior Courts Act 1981 and with reference to Avon Ground Rents Ltd v Child (2018) UKUT 0204 (LC) (our note).
That costs decision was appealed. Martin Rodger QC, sitting as a circuit judge in the county court, allowed the appeal.
The county court’s discretion on costs under s.51 of the Senior Courts Act 1981 is ‘subject to the provisions of this oor any other enactment’. The FTT (and UT) has full power to determine costs in proceedings in the tribunal under s.29(2) Tribunals Courts and Enforcement Act 2007. This enactment thereby excludes s.51 SCA.
Comment
On the one hand, this same reasoning would apply to, for example, a county court money claim for unpaid service charges that is transferred to the tribunal for determination of charges payable.
On the other hand, leases very often contain a contractual provision for the landlord’s costs of proceedings to be paid by the leaseholder, and where such a contractual claim for costs (which would include the tribunal costs) is pleaded, then it is within the powers of the county court to award them, entirely separately from the s.51 SCA discretion on awarding costs. See Chaplair Ltd v Kumari [2015] EWCA Civ 798.
So, perhaps perversely, this is a decision that is more likely to result in penalising successful defendant leaseholders than successful claimant landlords on costs.