V5.481 Award of costs

Award of costs—introduction

The costs (in Scotland, expenses1) of and incidental to:

  1.  

    •     all proceedings in the First-tier Tribunal, and

  2.  

    •     all proceedings in the Upper Tribunal

are at the discretion of the relevant tribunal, which has full power to determine by whom and to what extent the costs are to be paid2. However, this power is severely curtailed by the First-tier Tribunal rules, which provide that the First-tier Tribunal may only make an order in respect of costs as follows3:

  1.  

    •     Under TCEA 2007, s 29(4) (wasted costs), ie any costs incurred by a party4);

  2.  
    1.  

      –     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

    2.  

      –     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.

  3.  

    Similar wording is to be found in Senior Courts Act 1981 s 51(7), regarding which the Court of Appeal (in Ridehalgh v Horsefield [1994] Ch 205, [1994] 3 All ER 848) said:

  4.  
    1.  

      'improper' 'covers any significant breach of a substantial duty imposed by a relevant code of professional conduct' and extends to conduct 'which would be regarded as improper according to the consensus of professional (including judicial) opinion … whether or not it violates the letter of a professional code';

    2.  

      'unreasonable' describes 'conduct which is vexatious, designed to harass

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