Upper Tribunal (Administrative Appeals Chamber)

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Cite as: [2011] UKUT 135 (AAC)

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RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 135 (AAC) (29 March 2011)
Mental health
All

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

The Upper Tribunal has no jurisdiction to make the award of costs sought by the patient against the First-tier Tribunal.

Reasons for Decision

A. Introduction

1. On 11 February 2011, I decided that the First-tier Tribunal had, on 14 December 2009, made an error of law in the patient’s case, but I decided not to set its decision aside. My decision was issued to the parties on 1 March 2011. On 24 March 2011, the patient’s solicitors applied on his behalf for an order for costs against the First-tier Tribunal. I have no jurisdiction to make that order. This is why.

B. The powers to make a costs order

2. The powers of the First-tier Tribunal and the Upper Tribunal to award costs are governed by paragraph 12 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.

3. The Upper Tribunal’s power is governed by rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698):

(1) The Upper Tribunal may not make an order in respect of costs (or, in Scotland, expenses) in proceedings transferred or referred by, or on appeal from, another tribunal except-

…

(b) to the extent and in the circumstances that the other tribunal had the power to make an order in respect of costs (or, in Scotland, expenses).

4. That leads to the First-tier Tribunal’s power. In mental health cases, this is governed by rule 10 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Chamber Rules 2008 (SI No 2699):

(1) Subject to paragraph (2), the Tribunal may make an order in respect of costs only-

(a) under section 29(4) of the 2007 Act (wasted costs); or

(b) if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.

(2) The Tribunal may not make an order under paragraph (1)(b) in mental health cases.

5. That leads to section 29(4) of the Tribunals, Courts and Enforcement Act 2007:

(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—

(a) disallow, or

(b) (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.

6. Putting those provisions together produces this effect: (i) the Upper Tribunal has power only to award costs where the First-tier Tribunal could do so; (ii) in a mental health case, that tribunal has power only to make a wasted costs order; (iii) a wasted costs order may only be made against a legal or other representative. There is no statutory authority to make an order for costs against the First-tier Tribunal.

7. That is why I must refuse this application.

Signed on original
on 29 March 2011

Edward Jacobs
Upper Tribunal Judge

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