Decision Nº LCA 29 2013. Upper Tribunal (Lands Chamber), 29-08-2014
| Jurisdiction | UK Non-devolved |
| Judge | Sir Keith Lindblom, President |
| Date | 29 August 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 29 2013 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2014] UKUT 0372 (LC)
UTLC Case Number: LCA/29/2013
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COSTS – claim for compensation for injurious affection – costs capping – application to join non-party for costs – section 29 of the Tribunals, Courts and Enforcement Act 2007 – rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, as amended
BETWEEN (1) MR ROBERT DICKINSON
(2) MRS SANDRA DICKINSON
Claimants
and
NETWORK RAIL INFRASTRUCTURE LIMITED
Re: Willowbank, 2 Barn Road, Handsacre, Rugeley, Staffordshire, WS15 4TA
Before:
Sir Keith Lindblom, President
Sitting at:
the Royal Courts of Justice, Strand, London WC2A 2LL on 17 April 2014 and at 45 Bedford Square, London WC1B 3DN on 13 May 2014
Mr Daniel Saoul, instructed by Squire Saunders (UK) LLP, solicitors for the claimants
Mr Jonathan Klein, instructed by Eversheds LLP, solicitors for the compensating authority
© CROWN COPYRIGHT 2014
The following cases are referred to in this decision:
Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012
Dymocks Franchise Systems (NSW) Pty. Ltd. v Todd [2004] 1 W.L.R. 2807
PR Records Ltd. v Vinyl 2000 Ltd. [2008] 1 Costs L.R. 19
DECISION
Introduction
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In this reference the claimants, Mr and Mrs Dickinson, seek compensation from the compensating authority, Network Rail Infrastructure Limited (“Network Rail”), for the injurious affection of their property, Willowbank, 2 Barn Road, Handsacre, Rugeley, Staffordshire (“the property”), under Part 1 of the Land Compensation Act 1973. On 21 August 2013 Mr and Mrs Dickinson applied for an order under rule 10(7) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, as amended (“the 2010 Procedure Rules”), which would protect them against any liability in costs incurred after the date of the order. On 25 October 2013 Network Rail applied for an order joining Mr and Mrs Dickinson’s agents, Thomson Broadbent LLP (“Thomson Broadbent”), as a party to the reference with a view to making an application for costs against them in due course.
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Those two applications remain live. Three other applications, made by Network Rail on 25 October 2013 under rule 10(10) of the 2010 Procedure Rules, are no longer contentious. By those applications Network Rail sought an order that Mr and Mrs Dickinson pay (1) their costs wasted on the statement of case dated 26 February 2013, which, on 26 July 2013, the Tribunal ordered Mr and Mrs Dickinson to amend, (2) the costs of their application dated 3 April 2013 for an order that an amended statement of case be filed and served, and (3) the costs of their application for directions, dated 29 August 2013. In a letter to the Tribunal dated 20 May 2014 Network Rail’s solicitors invited the Tribunal to order on those three applications that Mr and Mrs Dickinson pay Network Rail the agreed sum of £1,000 in full and final settlement of their costs.
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The property is adjacent to the West Coast main line. Under The Network Rail (West Coast Main Line) Order 2003 the line was upgraded by the addition of two further tracks, one on either side of the existing two, so that now there are four. One of those two additional tracks runs some six metres from the rear boundary of the property. Mr and Mrs Dickinson contend that there has been a material increase in noise and vibration from trains using the line and that this has resulted in the value of the property falling by £30,000. The claim has been allocated to the standard procedure. There are, I understand, 37 other similar claims, in all of which Thomson Broadbent have been instructed as agents.
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At the hearing Mr and Mrs Dickinson were represented by Mr Daniel Saoul, Network Rail by Mr Jonathan Klein. Mr and Mrs Dickinson’s application is supported by the evidence of Mr Dickinson in his witness statements dated 10 October 2013 and 9 January 2014, and of Mr James Broadbent in his witness statements dated 11 October 2013 and 10 January 2014. Network Rail’s evidence opposing Mr and Mrs Dickinson’s application, and in support of its application for an order joining Thomson Broadbent, is contained in the witness statement of Mr Philip Glynn dated 25 October 2013.
Section 29 of the Tribunals, Courts and Enforcement Act 2007
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Section 29 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) provides:
“29. Costs or expenses
(1) The costs of and incidental to –
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all proceedings in the First-tier Tribunal, and
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all proceedings in the Upper Tribunal,
shall be in the discretion of the Tribunal in which the proceedings take place.
(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.
(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.
(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may –
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disallow, or
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(as the case may be) order the legal or other representative concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.
(5) In subsection (4) “wasted costs” means any costs incurred by a party –
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as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
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which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.
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In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.
… ”.
Rule 10 of the 2010 Procedure Rules, as amended
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As now amended by the Tribunal Procedure (Amendment No. 3) Rules 2013 (“the 2013 Procedure Amendment Rules”), rule 10 of the 2010 Procedure Rules provides:
“Orders for costs
10. – (1) The Tribunal may make an order for costs on an application or on its own initiative.
(2) Any order under paragraph (1) –
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may only be made in accordance with the conditions or in the circumstances referred to in paragraphs (3) to (6);
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must, in a case to which section 4 of [the Land Compensation Act 1961] applies, be in accordance with the provisions of that section.
(3) The Tribunal may in any proceedings make an order for costs –
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under section 29(4) of the 2007 Act (wasted costs) and for costs incurred in applying for an order for such costs;
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if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings; or
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in the circumstances to which paragraph (14) refers.
(4) Except in proceedings to which paragraph (5) and (6) apply, the Tribunal may –
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with the consent of the parties, or
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where there is a disparity of interest or resources between the parties,
direct that an order for costs may be made in the proceedings against one or more of the parties in respect of costs incurred following such a direction.
(5) The Tribunal may make an order for costs in judicial review proceedings.
(6) The Tribunal may make an order for costs in proceedings –
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for compensation for compulsory purchase;
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for injurious affection of land;
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under section 84 of the Law of Property Act 1925 (discharge or modification of restrictive covenants affecting land);
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on an appeal from a decision of the Valuation Tribunal for England or the Valuation Tribunal for Wales.
(7) Subject to paragraph (3), in proceedings to which paragraph (6) applies, the Tribunal may direct that no order for costs may be made against one or more specified parties in respect of costs subsequently incurred.
(8) In proceedings to which paragraph (6) applies, the Tribunal must have regard to the size and nature of the matters in dispute.
…”.
Mr and Mrs Dickinson’s application for an order under rule 10(7)
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Mr Saoul submitted that the principles underlying qualified one-way costs shifting in civil litigation can be applied to...
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