The general consensus is that litigation is the last port of call. Churchill famously said ‘to jaw-jaw is always better than to war-war’. This should be borne in mind by any party who pursues litigation; they must consider the costs consequences.

This article addresses case the of Willow Court Management (1985) Ltd v Alexander [2016] 0290 UKUT (LC) (“Willow Court”) in the Upper Tribunal (Lands Chamber), vis-à-vis unreasonable conduct during litigation in England.

RULE “13” TRIBUNAL 
RULES 2013
The Romans held the number thirteen as a sign of death and destruction. Yet in Chinese culture it is seen as a lucky number. Whether East or West, good or bad luck is out of the control of parties in a dispute. However, conduct, entirely within their control, will never be simply dismissed as part of litigation’s ‘tug-of–war’.

Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“Rules”) may give rise to financially damaging consequences. So it is important that those who litigate are aware of these rules.
It is worth mentioning that Willow Court was a residential leasehold dispute, but the Rules apply to park home matters equally, so this case is very relevant to park homes cases in the Tribunal in England.

Under Rule 13(1), where a Tribunal finds that:

● costs have been incurred as a result of any “improper, unreasonable or negligent act or omission on part of any legal or other representative which is unreasonable to expect that party to pay”, the Tribunal may order payment of wasted costs.

● a person who has acted: “unreasonably in bringing, defending or conducting proceedings”, the Tribunal may order payment of unreasonable conduct costs.

It is imperative to note that such an award and/or determination under Rule 13 is not subject to any capping whatsoever. It is also worth highlighting to the reader that the Tribunal has other powers in relation to costs and fees. Notable amongst these are the unfettered discretion in Rule 13(2) to order reimbursement of fees and the power in Rule 13(8) to order interest on costs.

WILLOW COURT
Willow Court dealt with Rule 13(1)(b) unreasonable conduct costs.

For the purposes of this article it would not be prudent to discuss the full details of the First-tier Tribunal (Property Chamber) (“the Tribunal”) determination, save to say that the Tribunal found in favour of Mrs Alexander and consequently she made an application for costs under Rule 13. The Tribunal ordered the management company to pay a significant sum to Mrs Alexander under Rule 13.

It is important to note that authoritative case law on “unreasonable conduct” was non-existent before Willow Court and that tribunals at first instance had adopted a bewildering variety of tests.

The appeal of Willow Court in the Upper Tribunal quite deliberately brought together a number of Tribunal cases where orders had been made or refused in order to lay down guidance for the future. In particular, the Upper Tribunal makes it quite clear that the implications of this case are that Tribunals are discouraged from considering Rule 13 unreasonable conduct applications and that Tribunals should use their case management powers “to actively encourage preparedness and cooperation and to discourage obstruction, pettiness and gamesmanship”.

 

INFO POINT

Ibraheem Dulmeer is a barrister and mediator at Normanton Chambers, 218 Strand, London, WC2R 1AT. Ibraheem is available for public access work. Enquiries may be made by telephone on: 0300 030 0218 or by email on: clerks@normantonchambers.com. You can also contact Ibraheem by visiting www.ibraheemdulmeer.com. You can use the contact box found on this website and Ibraheem or his chambers’ clerks will aim to contact you within 24 hours.
 

Read the full story in the April 2020 issue of Park Home & Holiday Caravan