England and Wales Lands Tribunal

[2001] EWLands LRX_65_2000 (09 May 2001)

LRX/65/2000

LANDS TRIBUNAL ACT 1949

COSTS – Proceedings before Leasehold Valuation Tribunal as to reasonableness of service charge – Tribunal refuses to order that costs incurred by landlord in connection with those proceedings not to be taken into account in determining amount of service charge – Tenants refused leave to appeal – Landlords apply for costs incurred in responding to application for leave – whether Lands Tribunal has jurisdiction to make costs order – Whether costs incurred by landlord proportionate – costs claimed of £6,509.75 reduced to £1,500 – Landlord and Tenant Act 1985, s.20C – Lands Tribunal Rules 1996, rule 52(1) and 52(4).

IN THE MATTER of an APPLICATION for COSTS IN RESPECT OF AN

UNSUCCESSFUL APPLICATION FOR PERMISSION TO APPEAL AGAINST A DECISION OF THE LEASEHOLD VALUATION TRIBUNAL FOR THE LONDON RENT ASSESSMENT PANEL

BETWEEN BARRINGTON COURT Applicant

DEVELOPMENTS LIMITED

and

BARRINGTON COURT Respondent

RESIDENTS ASSOCIATION

Re: Barrington Court

Colney Hatch Lane

London, N10 1QG

Before: N J Rose FRICS

Determining the matter on the basis of written submissions

Georgallis & Co., solicitors, of Crouch End, London for the Applicant.

Jennifer Israel & Co., solicitors, of Whetstone, London, for the Respondent.


 


DECISION

1. On 31 October 2000 the Leasehold Valuation Tribunal for the London Rent Assessment Panel (the LVT) issued its decision on an application made on behalf of the Barrington Court Residents Association (the respondent) for various determinations under the Landlord and Tenant Act 1985 as amended in respect of premises known as Barrington Court, Colney Hatch Lane, London N10 1QG. Among other matters, the LVT refused to make an order under s.20C of the Act that the costs incurred by the landlord, Barrington Court Developments Limited (the applicant) in connection with the proceedings before the LVT were not to be regarded as relevant costs to be taken into account in determining the amount of any service charge payable by the respondent. On 8 December 2000 the LVT refused to grant the respondent leave to appeal against that decision. The respondent then applied to this Tribunal for leave to appeal and that application was in turn refused on 8 February 2001. The applicant now applies for an award of its costs incurred in responding to that unsuccessful application. It estimates such costs at £6,509.75 plus VAT of £1,139.21. I have received written submissions from the parties.
2. The respondent submits that this Tribunal has no jurisdiction to make such a costs order and, alternatively, that the circumstances are not such as to justify an award of costs in this case. If the Tribunal is minded to award costs against it, the respondent submits that a modest fixed sum should be awarded.
3. Rule 52(1) of those Rules provides:

"Subject to the provisions of section 4 of the 1961 (Land Compensation) Act and of Rule 28(11), the costs of and incidental to any proceedings shall be in the discretion of the Tribunal."

4. By Rule 2(1) the term "proceedings" is defined as:

"proceedings before the Lands Tribunal".

5. Neither section 4 nor Rule 28(11) applies in the present situation.
6. I can see no reason for construing "proceedings" in Rules 2 and 52 so as to exclude applications for leave to appeal against a decision of the LVT. The application for leave gives rise to a determination by the Tribunal and in my view constitutes a "case" for the purposes of s.3(2) of the Lands Tribunal Act 1949. Rule 5C(7) provides for the making of written representations by a person who was a party to the LVT proceedings (see Rule 5B(1)) and under Rule 5D(1) a hearing into the application can be held. A person applying for leave to appeal therefore knows that a respondent is entitled to oppose the application and may incur costs in doing so. In my view costs can be awarded under Rule 52 on an application for leave to appeal.
7. I consider that the circumstances of this application are such that it is appropriate for me to exercise my discretion by making an award of costs in favour of the applicant. The respondent's application for leave to appeal failed and, in my view, the representations submitted on behalf of the applicant assisted in the process. Moreover, this is in my opinion an obvious situation where a lump sum award, as authorised by Rule 52(4), would be appropriate.
8. I therefore turn to the amount of costs which I should order the respondent to pay. The applicant's statement of costs, totalling £6,509.75, provided in response to a request from me, was made up as follows: Miss Roulla Fiakka, a Grade 2 fee earner, 22 hours 7 minutes at £180 per hour; Mr George Georgallis, a Grade 1 fee earner, 6 hours 5 minutes at £225; Mr Stan Gallagher of counsel, advising by telephone and in conference, 4 hours at £100 per hour and settling written submission on leave to appeal, 4 hours at £100. Mr Gallagher's charges for settling written submission on costs were based on 1 hour 30 minutes at £100 per hour and those of Miss Fiakka, for preparing and checking the bill, 1 hour 10 minutes at £180.
9. The respondent objects to the amount claimed on the following heads – the level of fee earner, the hourly rate, the work done, counsel's fees and proportionality. It points out that its own legal charges for the work done in connection with the application for leave to appeal, exclusive of VAT, were £810, of which counsel's fees totalled £450.
10. I agree with the respondent that the legal costs itemised in the applicant's statement of costs are quite disproportionate. It is noteworthy that counsel who prepared the detailed written submission on the application for leave to appeal was able to do so in four hours. He had been instructed in the substantive hearing before the LVT and was thus fully conversant with the case. Against that background, it was clearly unnecessary for his instructing solicitors to spend a total of 28 hours 12 minutes on dealing with the application. It was also unnecessary for counsel to spend 4 hours advising instructing solicitors on the matter.
11. I propose to adopt a robust approach in deciding what lump sum would be appropriate. I order that the respondent shall pay the applicant the sum of £1,500 in respect of the latter's costs plus VAT thereon.

Dated: 9 May 2001

(Signed): N J Rose