Steven Robert Coogan v Maryam Taheri

Introduction

1. This is an application for the costs of an unsuccessful appeal against a costs order made by the First-tier Tribunal (Property Chamber) (Residential Property) (“the FTT”).

2. Following a two-day hearing on 3 and 4 October 2024 at which the appellants represented themselves, on 10 October 2024 the FTT determined four applications, three from the tenants (‘the appellants’) and one from the landlord (‘the respondents’) of residential premises at 9A Belsize Crescent, London NW3 5QY (‘the property’). The tenants’ three applications were as follows: for determination of certain service charges; for the appointment of a manager; and for an order limiting the landlords’ costs. The landlords’ application sought dispensation from the consultation requirements under Landlord and Tenant Act 1985 in respect of major works. The FTT allowed a sum in respect of major works; made no order on the application to be dispensed from consultation since it was unnecessary in view of the determination of the cost of the major works; and refused the application for the appointment of a manager. It gave directions for submissions on costs.

3. By its decision dated 25 November 2024 (corrected under the slip rule on 5 December 2024), the FTT made a costs order against the tenants in the sum of £70,000 pursuant to rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, that is, that the tenant had unreasonably in conducting the proceedings. Permission to appeal the costs order was granted by this Tribunal on 5 February 2025 and on 1 September 2025 this Tribunal dismissed the appeal in a reserved judgment.

4. The landlords now apply for the costs of the appeal in which they were successful. They do so on two bases. Their primary position is that the tenants have agreed to pay their costs. Alternatively, they seek an order for costs under rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. It should be noted immediately that those rules do not apply to proceedings in the Lands Chamber. The relevant rule is Rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010/2600 which so far as relevant provides as follows. “(1) The Tribunal may make an order for costs on an application or on its own initiative. (2) Any order under paragraph (1)— (a) may only be made in accordance with the conditions or in the circumstances referred to in paragraphs (3) to (6);… (3) The Tribunal may in any proceedings make an order for costs—… (b) if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings…”

5. The submission that the tenants have agreed to pay the landlords’ costs is based upon emails between counsel for the respective parties of following the decision of this Tribunal in attempting to agree a form of order to reflect that decision. I am satisfied that these emails are not privileged for present purposes.

6. Counsel for the landlords proposed an order, paragraph 1 of which read “The Appellants shall pay the Respondents’ costs of the application for permission to appeal and the appeal to be the subject of a summary assessment on the standard basis if not agreed.” Counsel for the tenants’ substantive response was that the proposed wording of the order “was probably still appropriate” and that “presumably the first line of the proposed order should see the costs dismissed”. The reference in the second passage to seeing the costs dismissed makes no literal sense, and must be a reference to seeing the appeal dismissed (something for which the draft order had not actually provided).

7. It is perfectly plain in the context of the email exchanges that there was, at best, an agreement in principle as to the incidence of costs, but that the parties were still negotiating the terms of the order of which that was only one. This Tribunal is unable to read the correspondence as amounting to a concluded or binding agreement that the tenants should pay the landlords’ costs.

8. The difficulty which the landlords face in seeking an order for the costs of the appeal on the basis that the tenants or their representative had acted unreasonably in bringing, defending or conducting the appeal was that they did not act unreasonably. The tenants were entitled to challenge the costs order, and obtained permission to appeal it, and pursued their appeal in a manner which it is impossible to characterise as unreasonable.

9. The landlords seek to meet that difficulty by saying that it was clear from this tribunal’s decision on the appeal that it was an appeal in substance wholly without merit, and represented an unreasonable attempt to relitigate issues already conclusively determined below. But the fact that an appeal fails does not mean that it is wholly without merit, or that it is brought or pursued unreasonably. It is true that a forensic attempt was made to undermine, or at least to gloss, the finding of fact by the FTT that Mr Coogan had been dishonest. This Tribunal would not, and did not, encourage that attempt. But it was only a part of the appeal submissions and it was not to be regarded as unreasonable conduct. If it were, this Tribunal would not regard it as sufficiently unreasonable or important to merit a costs order.

10. The landlords submit that, given the appeal was against a costs order made on the basis of unreasonable conduct in the FTT, it would be highly unjust if costs incurred defending an appeal against that order were not considered to fall within the relevant rule. I reject that submission. The rule requires unreasonableness, and there was none. That is the end of the matter. Nor do I consider that outcome to be unjust. It is important that the parties against whom such an order is made should have a genuine opportunity to challenge it on appeal, just as they might challenge any other decision, and as long as they do so reasonably, without fear of a costs sanction in a jurisdiction which is, save as the Rules provide, cost-neutral.

11. Accordingly, the application for costs is dismissed, and there will be no order as to the costs of and incidental to the appeal. His Honour Judge Neil Cadwallader 4 November 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.