UT Neutral citation number: [2013] UKUT 142 (LC)

UTLC Case Number: ACQ/144/2012

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – Compulsory purchase – surveyor’s fees in respect of negotiating compensation – hourly rates – time spent – Fees determined at £3,840 plus VAT and disbursements

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN STEPHEN DOWNSWORTH

TAMMY DOWNSWORTH Claimants

and

MANCHESTER CITY COUNCIL Acquiring Authority

re: 64 Stopford Street, Higher Openshaw

Manchester M11 1FG

Determination on written representations

by

P R Francis FRICS

The following cases are referred to in this decision:

Poole v South West Water Ltd [2011] RVR 286

Matthews v Environment Agency [2002] 3 EGLR 168

Newman v Cambridgeshire County Council [2011] RVR 283

DECISION

Introduction

1.           This is a reference solely to determine the surveyor’s charges incurred by the claimants, Mr & Mrs Downsworth, in respect of the compulsory acquisition of their property, 64 Stopford Street, Manchester M11 1FG by Manchester City Council (the council) under the City of Manchester (Toxteth Street) Compulsory Purchase Order 2007.  All other items of claim have been agreed.  The claimants’ property was one of 551 houses and flats included within the order which was confirmed by the Secretary of State on 21 January 2009. A General Vesting Declaration was executed on 6 May 2009, and the property formally vested in the council on 11 June 2009.

2.           The surveyor is Mr Dominic Thompson FRICS FCIArb MAE, sole principal of Hockenhulls’ Chartered Surveyors, Chester, who was appointed by the claimants in October 2009 for the purposes of agreeing compensation with the council for the value of their property and other disturbance items.  His fees were agreed with the claimants at £175 per hour plus VAT and disbursements on 25 November 2009 and the council was advised (by copy of Hockenhulls Terms of Business signed by both parties) on 3 December 2009. Compensation under rule (2) of section 5 of the Land Compensation Act 1961 was agreed by negotiation between Mr Thompson and the council’s agent on 4 December 2009 at £59,750 with disturbance issues (rule (6)) subsequently being agreed £4,500 on 9 December 2010.  

4.           Mr Thompson also provided a Statement of Case accompanied by copy correspondence and a “Schedule of Documentary Evidence” amounting to some 194 pages. The council (in the name of Margaret Foley, Solicitor, Legal Services, Manchester City Council) submitted a response and a summary of contentions in connection with the reference to the effect that the £3,840 already paid to Mr Thompson was a discretionary payment made in an attempt to reach a negotiated settlement in this matter, and was already significantly in excess of fees paid to other surveyors who acted for other residential homeowners affected by the scheme.  Thus, it was contended, the fees claimed were wholly unreasonable and disproportionate as were those additionally claimed in connection with the fees dispute and the preparation of this reference.

5.           This initial response was followed by the council’s Statement of Case against which counter representations were made by Mr Thompson on 7 December 2012.  Also, on that date, the council filed and served the witness statement of Gillian Boyle BA (Hons) MRICS MRTPI together with appendices.  She is the commercial manager in the council’s Corporate Property Department, responsible for a team of 8 Chartered Surveyors and contract manager for the council’s external property advisers. Mr Thompson submitted a response to this on 14 December 2012.  The Tribunal then advised the parties that no further representations or argument would be considered.

6.           Setting out the background and details in the Statement of Case relating to his disputed fees, Mr Thompson said that he had initially been approached by the claimants on 6 October 2009 and received instructions to proceed about 1 week later.  An inspection of the claimants’ house was undertaken on 25 November 2009 and on 26 November Mr Thompson made contact with Mr John Hargan MRICS of Jacobs Engineering UK, the council’s agents, commencing negotiations.  The claimants’ instructions, and the fees basis, were formally confirmed in writing on 3 December 2009. On 4 December 2009, agreement was reached as to the value of the house and the claimants, taking advantage of a council scheme to assist with occupiers relocations, purchased and moved into 21 Silverlace Avenue, Openshaw on 29 January 2010. Negotiations relating to various items of disturbance (claimed in the total sum of £8,032.78) continued between Mr Thompson and Mr Hargan from August 2010 with the rule (6) compensation being compromised in the sum of £4,500 on 9 December 2010. 

7.           Mr Thompson said that he had formally advised the council’s Housing Renewal Team by letter of 1 December 2009 (with a copy to Mr Hargan) of his appointment by the claimants and, by copy of the signed Terms of Business, of his fee basis. He said that the claimants were, and are, therefore bound to pay “£175 per hour for the time that Hockenhulls reasonably worked” together with reasonable expenses, and that they had agreed the narrative that had been provided setting out details of the total of 28 hours work (10.75 hours between 6 October and 4 December 2009 – the date by which the house value was agreed, and 17.25 hours for negotiating the disturbance items) as reasonable.

8.           There was, he said, a matter of principle involved, and as he was acting in 9 or 10 other cases under the same scheme, the outcome of this reference could impact upon each of those.  Correspondence and other documentation relating to the discussions with the council in connection with his fees in those cases was also enclosed, although it was acknowledged that they were not directly relevant to this claim. In each case his fee had been agreed with clients at £175 per hour.  Mr Thompson said that he had also been involved with around 20 compensation claims in the broad area of east Manchester covered by three councils (including Manchester City Council) over the last 6 or 7 years (every case but this one relating to commercial premises), and his contractual hourly rate was almost always £175 plus VAT. He said that Oldham MBC had agreed a fee basis of £175 ph and Tameside had agreed fees based upon £170 ph.  The rate agreed with the claimants in this case was his normal one and Mr Thompson said he could see no reason why his firm should have to accept a lesser rate.

9.           He referred to, and said that the claimants relied upon, the Tribunal’s decision in Poole v South West Water Ltd [2011] RVR 286 (which cited Matthews v Environment Agency [2002] 3 EGLR 168) together with Newman v Cambridgeshire County Council [2011] RVR 283.  Mr Thompson said that the Tribunal had held that any lesser amount paid to the claimants as compensation [than the fee that had been agreed with them] would result in them receiving less compensation than that to which they were entitled. Those cases clearly demonstrated that fees based upon an hourly rate were permissible and so long as the time spent was reasonable in the circumstances of the particular case, they should be paid without deduction. They had also confirmed that fees incurred in arguing professional fees were recoverable.

10.        In the three narratives provided with the Statement of Case, Mr Thompson showed the 28 chargeable hours for dealing with the claim, the time spent dealing with the council in respect of his charges in this case (17.5 hrs) and a further 36.5 hrs relating to the preparation and submission of this reference.  He also provided as part of the schedule of correspondence relating to this dispute, a Scott Schedule setting out his (the claimants’) and the council’s position on the various issues.   He said that he would be responding to the council’s statement of case and, if the hourly rate was to be an issue and reserved the right to seek disclosure of the rates agreed with other firms of surveyors.

11.        It was submitted that the council’s final offer still leaves 4 hours of the casework on the main claim outstanding (whereas Mr Hargan had only queried 3.5 hours), his claimed expenses relating to that and his time spent on arguing about surveyor’s charges. The material point here, he said, was that if the council had agreed to pay for all the hours worked and claimed for, together with the time spent discussing surveyor’s charges (as per Newman) he would have been prepared to settle for the £160 per hour offered by the council. However, they were trying to cut short the hours claimed, were cutting £15 per hour off the hourly fee he had agreed with the claimants and were disputing the claim for time spent arguing about fees.  The extent of the issues still in dispute were “the straw that broke the camel’s back”, hence the reason why this reference was proceeding.  The time taken discussing fees with the council was, he said, entirely reasonable bearing in mind their procrastination and the unreasonable and uncooperative stance they had taken. Similarly, in respect of the costs of preparing for this case, it was acknowledged that the time spent was considerable but all of it had been necessary and was accounted for in the narrative he had provided.

12.        Having argued his position, Mr Thompson said that if the Tribunal finds that the hourly rate that should apply in this case is £160 – a figure he had reluctantly agreed with the council as a gesture of compromise, or any other figure, that is the rate that will be charged to the claimants.

13.        In its Summary of Contentions (as expanded upon in its own Statement of Case) submitted in response to the claimants’ Statement of Case, the council said that the level of fees claimed by Mr Thompson both in terms of the hourly rate and the amount of time expended were wholly unreasonable and disproportionate in respect of a compensation claim relating to a single dwelling house. A total of £3,840 plus VAT had already been paid to Hockenhulls; that sum already being significantly more than had been paid to three other surveyors involved with properties in Stopford Street. Those fees had ranged from £908.50 to £1490.50 for dealing with property value and associated disturbance claims. Mr Thompson’s claim for a further 17.5 hours relating to the dispute over fees and hours was again disproportionate and not reasonably incurred.

14.        Regarding the £175 hourly rate, whilst it was acknowledged that the council had been promptly advised that that was what had been agreed with the claimants, it had never accepted it as an appropriate rate and had advised Mr Thompson accordingly. The council said that according to the RICS ‘Guidance Note on fee calculation post Ryde’s Scale’ relating to the exercise of statutory powers in connection with land and property, surveyors’ fees should “in all cases be proportionate to the size and complexity of the claim, and be commensurate with the time, effort and expertise required to deal with the case.” This was a typical residential property with a modest disturbance element devoid of particularly complex or extraordinary issues, and the range of fees the council would normally expect to pay in such circumstances would be in the range of £90 to £150 per hour.

15.        In that regard, correspondence was produced from two local firms of surveyors who had acted for claimants on residential units within the same scheme. Roger Hannah & Co said that their fees had been agreed on the basis of 1% of the total compensation paid, plus VAT for acting for a Housing Association in respect of over 100 of the properties affected by this scheme.  Roger Hannah & Co’s principal invoice relating to 79 of the properties had been raised in April 2009 and averaged £540 per property for negotiating market value, disturbance and home loss payments.  It was said that a typical property would take between three and four hours of a surveyor’s time although it was acknowledged that some marginal savings in time could be made due to the volume of properties being dealt with. As to hourly charge out rates for 2009, they said the range was £120 to £150 per hour depending upon the professional undertaking the work. Peter Cunliffe, Chartered Surveyors, had been involved in a number of CPO schemes in the area and had acted for over 50 individual clients in relation to this scheme. Their fees were based upon the old Ryde’s Scale or between £90 and £110 per hour whichever was the greater. The average fee charged per property ranged between £850 and £1,200 for negotiating both market value and disturbance issues.

16.        The council said that, purely in an effort to settle this dispute, it had offered to pay an hourly rate of £160 despite it being above the normal range and more appropriate for complex commercial claims.  This hourly rate had been accepted by Mr Thompson in emails of 20 October 2010 and 23 February 2011.  Nevertheless, that acceptance was qualified in that there was a stipulation that the council must also agree the number of hours claimed.  It appeared, it was said, that Mr Thompson’s stance had changed following publication of the Tribunal’s decision in Poole and he had reverted to claiming the £175 per hour. In the light of the fact that it had not been possible to compromise the claim with Mr Thompson, the council said that their offer was withdrawn, and urged the Tribunal to determine a figure in the range £90 to £150 per hour.

17.        Turning to the number of hours claimed (28 for negotiating and agreeing compensation and 17.5 for negotiating fees) the council said that was again unreasonable and disproportionate to the size and complexity of the case especially when compared with the hours taken by other surveyors dealing with similar cases. Whilst it was acknowledged that a claimant has the right to choose which surveyor to use and to have their costs reimbursed, the fact remained that such costs should be reasonable and proportionate to the size and complexity of the case and commensurate with the time effort and expertise required. In this case, both the hourly rate and the time expended were substantially in excess of the norm, and thus the claim was unacceptable.

18.        The council had been prepared to pay fees at £160 per hour for eight hours in respect of negotiating the market value and 6 hours for the disturbance claim together with 10 hours relating to the fees dispute totalling 24 rather than the 45.5 hours claimed for.

19.        As to the amount of time spent in respect of preparation for this reference, it was accepted that it was in the Tribunal’s discretion to decide. However, it was stressed that rather than, as Mr Thompson had alleged, it being the council that had procrastinated, it was in fact Mr Thompson who had been unreasonably reluctant to accept the council’s offers to settle the dispute.  In this regard, the council said that it reserved the right to counterclaim its own costs on the grounds of Mr Thompson’s unreasonable behaviour.

20.        The reference in Mr Thompson’s Statement of Case talks with Mr Murray in connection with fee rates generally (as shown at his Appendix 5) should be ignored as is it is not directly relevant to this claim. In response to the claimants’ request that the Tribunal exercise its discretion to award interest by applying the Arbitration Act 1996, the council referred to Rule 3(2) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 which specifically states that part 1 of the Arbitration Act 1996 does not apply to proceedings before the Tribunal, except for references by consent under Rule 30 – which is not the case here.

21.        The council said that it had a duty to act fairly towards all residential and business owners and their representatives involved with compulsory purchase proceedings. The payment of fees to one particular claimant’s professional advisor that are wholly disproportionate and unreasonable would have an impact on the cost of future regeneration initiatives and as such the Tribunal was urged to dismiss the claimants’ claim in its entirety.

22.        The witness statement of Mrs Boyle set out in detail the background to the CPO which was made as part of a major regeneration project to redevelop the Toxteth Street area of Openshaw (and a wider general area) to replace low grade and abandoned housing with higher quality family homes. Although many of the properties within the CPO area were acquired by agreement prior to vesting, compensation in many others was negotiated and agreed through professional advisors acting for residents who had been unable to agree.  Ms Boyle said that the claimants in this case took advantage of a Relocation Package that had been developed by the council to assist displaced occupiers who wished to remain in the area to bridge the gap between the value of their old home and one of the new units.

23.        Ms Boyle then set out the chronology of events, and the council’s contentions as included within the statement of case (and summarised above). Pointing to the fact that Mr Thompson had on numerous occasions indicated that he was prepared to agree an hourly rate of £160, he had reverted to his £175 per hour following his interpretation of Poole. She said she had analysed the Poole case and said it was entirely distinguishable from the case in hand as it was a different set of circumstances (the laying of a water pipe over agricultural land), was complex, and there had been particular problems such as the route being altered and reinstatement delayed.  The fee rate charged in 2010 at £120 per hour was reasonable (as found by the Tribunal) as was the number of hours claimed (26) bearing in mind the complexity of the case.

24.        Ms Boyle said that Mr Thompson had settled at rates below his £175 figure in cases both within the Toxteth Street CPO area and within the area of the Edison Street CPO. She produced a Schedule of 5 cases where although contending that £175 per hour was his contractual rate, he had agreed fees between £125 and £160 per hour in four of them and a fixed £500 for the house valuation with £120 per hour for negotiations on disturbance.

25.        A schedule prepared by Jacobs Engineering, the council’s professional compensation surveyors, was also produced showing the fee rates and the hours claimed for in all the Toxteth Street claims.  Analysis of this, Ms Boyle said, showed that in every case fees were considerably lower than had been claimed by Mr Thompson, ranging from £300 to £1,600 depending on the size and value of the house, the number of interests in it and whether or no disturbance was claimed. Copy invoices were also produced showing the level of fees paid for negotiating market value and these ranged from £350 to £800. Whereas not all residential owners within the scheme had appointed surveyors, and not all claims contained disturbance, an analysis of claims that are almost identical to 64 Stopford Street (Appendix 11) showed the range of hours claimed by other surveyors at between 3 and 10, with overall fees charged between £300 and £1,150. This evidence, it was argued, proved beyond doubt just how out of line Mr Thompson’s fees were, especially as the house value had been agreed within a very short space of time and there were no particularly complex or unusual issues within the disturbance claim which was also settled within a reasonable period after Mr Thompson’s initial claim under that head was submitted in August 2010.

26.        Indeed, a detailed analysis of Mr Thompson’s narratives (Appendix 12) showed, she said, that even allowing generous amounts of time for the actions listed (in comparison with what it was considered reasonable for a competent surveyor to apply), Mr Thompson’s times were significantly overstated.  Furthermore, it was not, in her view, reasonable to charge hours for reading relevant case law, sending unnecessary emails or disputing points that are irrelevant to the case.  Identifying a number of specific hours claimed and considering the issue overall, Ms Boyle said that she had calculated 13 hours 15 minutes as reasonable – that being very close to the 14 hours assessed as appropriate by both John Hargan and Bill Fulster of the council.  One specific example of too much time being charged related to a meeting Mr Thompson had with her on 9 December 2011 which lasted for just 40 minutes.  Mr Thompson, when the meeting was arranged, had said he was in Manchester that day but nevertheless he had claimed for 3 hours.

27.        Responding to this witness statement, Mr Thompson firstly complained about the late service of this document and made the point that, being described as “Witness Evidence” it was neither a witness statement of fact nor an expert witness report. It was not clear whether it was intended to be a statement of facts, or whether, as it appeared, she was attempting to give opinion evidence as an expert witness or to make further representations as an advocate for the council, or both.  In any event, the report had not been accompanied by the required Statement of Truth and it was clear that she had had no regard to the RICS Practice Statements and Guidance Notes for surveyors acting as either expert witnesses or advocates. A Declaration of Truth was subsequently submitted to the Tribunal on 10 January 2013. There had also, Mr Thompson said, been a breach of confidentiality in including details of the fees agreed in other cases he was dealing with.

28.        Mr Thompson insisted that whilst the decision in Newman was probably the most important in relation to this case as the time spent on discussing surveyors’ charges was much greater, he did not agree with Ms Boyle’s understanding of Poole.  The laying of a water pipe through farmland is no more or less complicated for those experienced in that kind of work.  Further, the period of time taken to settle a claim is not necessarily related to its complexity. The charge out rate endorsed by the tribunal was for a surveyor working in the agricultural sector where fees are generally lower than “city centre” rates.

29.        As to the accusation that he had changed his stance in relation to the applicable hourly rate following publication of Poole, Mr Thompson said that the chain of correspondence did not support that accusation.  In any event, the council had now withdrawn its offer of £160 per hour and they could not have it both ways.

30.        Regarding the statement that he had accepted lower fees in other cases, Mr Thompson agreed that this was the case and set out the background to explain the circumstances in each one. However, he said that those were not relevant to this case since this one “is based upon its own contractual (for surveyors’ services) and factual matrix.”  He also said that despite the council’s evidence as to what Roger Hannah and Co had said about their charges, he was aware that in actual fact their Mr Cook’s normal charge out rates are £170 per hour.

31.        I consider firstly the claimants’ reliance upon Poole and Matthews.  In Poole v South West Water Ltd [2011] RVR 286, the reference was, as here, relating solely to surveyors fees, compensation for disturbance (only) having been agreed at £12,940.25.  The claimant’s surveyor argued that his fees, charged out at an hourly rate of £120 (agreed with his client in late 2007) for 26.5 hours of time spent on negotiating compensation for disturbance with South West Water Ltd (“SWWL”) over an 18 month works period, together with £63.50 in disbursements.  Those fees, he said, were in a range of £80 to £126 per hour that had been published by the Central Association of Agricultural Valuers following a survey of rates for associates and qualified valuers for 2009.  There had been particular issues relating to the reinstatement of his client’s land that had necessitated three site visits and extensive negotiations with SWWL. The compensating authority contested the surveyor’s invoice on the grounds that this was one of 37 claims relating to the same scheme (the laying of a pipeline) and in the other 36 surveyors’ fees had been agreed on the basis of the 1996 Ryde’s scale plus 20%.  They also challenged the surveyor’s hourly rate, suggesting £80 to £100 per hour to be more appropriate, the time he had spent on the matter and his disbursements.

32.        In his decision, the Member, Mr N. J. Rose FRICS, pointed out that the Office of the Deputy Prime Minister issued a notice abandoning Ryde’s Scale shortly after the Tribunal’s publication of Matthews v Environment Agency [2002] 3 EGLR 168 in 2002 and it had not been reviewed since.  He said that following that abandonment, the RICS had issued guidance as to the approach to be adopted in future in the calculation of fees relating to the exercise of statutory powers in connection with land and property.  It said:

“The fee should in all cases be proportionate to the size and complexity of the claim, and be commensurate with the time, effort and expertise required to deal with the case.” 

33.        Mr Rose then said, at paragraph 28:

“ I accept Mr Rowe’s evidence that the original statement of claim was reasonable and that three meetings on site were required to do justice to the claimant’s case.  I find that representation by an associate partner, the hourly rate of £120 applied to the time taken, and expenses based upon 50p per mile, were proportionate to the size and complexity of the claim and commensurate with the time, effort and expertise required to deal with the case. In my judgment Mr Rowe was justified in seeking to agree a time related fee with Mr Denne [the estates surveyor of the compensating authority], rather than one calculated by reference to the officially abandoned Ryde, and to charge for the time he spent doing so. In short, there are no sound reasons for contesting Mr Rowe’s proposed charges…”

34.        Matthews was another case where the compensating authority in a complicated case relating to compensation for sea defence works was arguing that surveyor’s fees should be based upon Ryde’s scale, although it had agreed that due to the complexity of the case that should be increased by 50%.  The claimants’ surveyors had been paid almost £29,000 by the claimants on the fees basis that had been agreed between them, whereas the compensating authority’s case was that, based upon Ryde, which was linked to the amount of compensation determined or agreed the recoverable amount under this head was some £12,600.  At paragraph 75, the Member (again Mr Rose) said:

“ Mr Koldziej [counsel for the compensating authority] accepts that the claimants’ entitlement to “full compensation” under the Act means an entitlement to compensation no less and no more than the loss imposed upon them. In the case of surveyor’s fees the claimants have paid £28,932.35 to Grimley. It is agreed that the figure represents a reasonable sum for the work involved. That being the case, the application of Ryde’s Scale would result in the claimants receiving less compensation than the loss they have suffered.  It would not therefore represent full compensation.  Accordingly I find that the claimants are entitled to reimbursement of all the fees paid to Grimley.” [My emphasis]

35.        It is this point that, it seems to me, is the foundation of Mr Thompson’s arguments.  His case is that having agreed his normal, standard hourly rate with the claimants they are contractually obliged to pay it and the council, by reneging on its duty to pay those charges, would be depriving the claimants of compensation to which they were entitled.   

36.        I do not think either of these cases assists Mr Thompson. Both of them relate to Ryde’s scale which, as explained above, has long since been abandoned.  In this case there is no suggestion by the council that fees should be based upon Ryde or any other such scale.  They are simply saying that the hourly rate was too high in comparison with rates being paid to other surveyors involved in similar work and that, of more import in respect of quantum, the number of hours claimed for both in respect of the negotiation of compensation and the negotiations over fees were totally unrealistic.

37.        On the basis of the evidence before me, I agree. I am satisfied that the council was perfectly justified, bearing in mind its responsibilities in connection with the public purse, to challenge Mr Thompson’s hourly rate and I accept the evidence and opinion of Ms Boyle in terms of what, realistically, would have been not only a fair charge-out rate but also as to what could, mindful of the RICS guidance, be construed as a reasonable time for the job to have taken. The council’s evidence demonstrates that £175 per hour would not be out of line for a complex commercial case but it also clearly shows the range of fees that have been paid in residential cases which in general are still very much below even the £160 per hour compromise figure that the council had been prepared to offer in its attempts to compromise the matter.

38.        More importantly, in my view, the letters from two other firms of surveyors that were produced, and the schedules of payments made to surveying firms involved with this case demonstrate beyond peradventure just how unrealistic and overstated Mr Thompson’s proposed charges relating to the compensation claim were. It is clear that, as the council argued, negotiation in respect of the compensation to be paid for the value of the claimants’ house was a relatively simple and straightforward matter and could in no way be considered complex.  Similarly, the negotiation of compensation for what were straightforward and uncontroversial items of disturbance could not, by any stretch of the imagination, be deemed difficult and there was no suggestion that they were.

39.        I find it incredible that Mr Thompson is claiming that it took 28 hours to negotiate the claimants’ compensation (amounting to some £4,900 at his quoted hourly rate) and that even in the light of the evidence of the charges levied by other firms for similar work, he has consistently refused to reconsider or to accept the council’s compromise offer unless the council was prepared to accept all his claimed hours without adjustment of any sort. He said that the council’s attempts to renegotiate both the hourly rate and the time taken was the straw that broke the camel’s back and therefore reference to the Tribunal had been unavoidable.

40.        Not only is Mr Thompson claiming a further 17.5 hours at his full rate for arguing about his fees with the council, but it appears he has logged yet another 36.5 hours in preparing this claim.  In terms of proportionality, it needs to be borne in mind that as a compromise, the council had offered to pay for 24 hours at £160 per hour in respect of the claim and the arguments over fees which amounts to the £3,840 already paid.  The difference between the parties (not considering pre-reference costs or the disbursement element, which by itself is not material, is £4,122. The difference between them purely on the fees for negotiating the compensation claim is: claimants - 28 hours x £175 = £4,900; council - 14 hours x £160 = £2,240. The time spent by Mr Thompson, according to his narratives, on arguing fees and preparation of this claim (which he also expects to be compensated for) is 54 hours which at £175 per hour amounts to £9,450. To me, these figures put the disproportionality of pursuing this dispute to the Tribunal into sharp perspective.

41.        In the light of the evidence, I conclude that the council was generous in its compromise offer and could well have argued for a lower figure.  Although it said that that offer is withdrawn and that the hourly rate should be determined at a lower level, I am mindful of the fact that that was a figure the council had been prepared to pay, and indeed it has already done so. I therefore determine the claimants’ surveyor’s fees payable by the council in the sum of £3,840 plus VAT (which is for the compensation negotiations and time for arguing fees) to which should be added the disbursements claimed in the sum of £207.50. In respect of the claim for interest, I accept the council’s argument (see para 20 above), and dismiss that aspect of the claim.

42.        This leaves the question of the 36.5 hours claimed in connection with the preparation for and making the reference to the Tribunal.  Bearing in mind the evidence (which Mr Thompson accepted) that he had agreed lower charge-out rates on other cases he was arguing with the council, I find it surprising that he has continued to pursue this matter before the Tribunal.  In the light of my findings above that the reference was misconceived and the fact that I have found entirely for the council in the matter, I determine that such costs are irrecoverable.  Similarly, despite what was intimated in the Schedule accompanying his claim, there can be no question of there being any recovery of costs incurred (Mr Thompson’s Appendix 5) in respect of the generic discussions with the council over fees as they were not directly related to this case.

43.        Costs of the reference itself are only awarded in references conducted by written representations in exceptional circumstances.  Despite my criticisms of Mr Thompson in respect of the claimants’ reference, I do not intend to invite submissions or to make any award as to costs.