Automated Summary
Key Facts
The case involves an appeal by Ms. Penny Jane Gilchrist against a costs decision by the First-tier Tribunal (FTT) in a land registration dispute with C & C Equine Services Ltd. The FTT had ordered Ms. Gilchrist to pay half of C & C's costs up to 11 December 2017 and the full costs thereafter following her rejection of a 'without prejudice' offer on 21 November 2017. The Upper Tribunal (Judge Elizabeth Cooke) overturned the FTT's decision regarding the costs after the offer was refused, ruling that Ms. Gilchrist should not have been ordered to pay full costs for that period. The Tribunal also upheld the original order for her to pay half of C & C's costs on the standard basis, excluding the post-offer period, and mandated a payment on account of £16,421.59 within 28 days of the 9 July 2019 decision.
Issues
The central issue was the legal classification of a 'without prejudice' offer made by C & C on 21 November 2017. The FTT concluded it was 'without prejudice save as to costs,' leading to an order for Ms Gilchrist to pay full costs post-rejection. The Upper Tribunal overturned this, holding that the offer lacked sufficient indication of a 'save as to costs' basis and thus should not have influenced the costs decision. This re-shaped the cost liability, reducing Ms Gilchrist's obligation to half of C & C's costs on the standard basis.
Holdings
- Ms. Gilchrist is ordered to pay a payment on account of £16,421.59 (70% of half the claimed costs) within 28 days of the decision. This payment is mandated to ensure C & C receives a portion of its entitled costs promptly, as the appeal has resolved that the prior costs order was flawed.
- The Upper Tribunal (Lands Chamber) allowed Ms. Gilchrist's appeal regarding the costs decision, determining that the without prejudice offer made on 21 November 2017 was not validly classified as 'without prejudice save as to costs'. Consequently, Ms. Gilchrist is ordered to pay half of C & C's costs in the First-tier Tribunal proceedings, assessed on the standard basis, without the prior requirement to pay full costs for the period after rejecting the offer. The Tribunal emphasized that the offer lacked explicit language indicating its admissibility for costs purposes, and thus should not have been considered in the costs determination.
Remedies
- Ms Gilchrist is ordered to pay half of C & C's costs of the proceedings in the FTT, to be assessed on the standard basis in default of agreement. This remedy was re-made by the Upper Tribunal following the appeal, with the proviso that she should not have been ordered to pay all costs for the period after refusing the 21 November 2017 offer.
- Ms Gilchrist is ordered to pay a payment on account of £16,421.59 to C & C within 28 days of the decision. This payment represents 70% of half of C & C's claimed costs, in any event, and is separate from the broader costs order.
Legal Principles
The tribunal determined that a 'without prejudice' offer made in November 2017 should not be treated as 'without prejudice save as to costs' because it lacked explicit language reserving costs-related rights (e.g., no mention of 'we reserve the right to draw this letter to the judge's attention on the question of costs'). The court emphasized that such offers must clearly indicate their cost implications to be admissible in costs decisions, and the absence of such language rendered the offer inadmissible for determining cost liability.
Cited Statute
- Land Registration Act 2002
- Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010
- Tribunals, Courts and Enforcement Act 2007
Judge Name
Elizabeth Cooke
Passage Text
- The offer was not stated to be 'Without Prejudice save as to costs', and it did not include any equivalent expression... It is difficult to see, therefore, why it was disclosed or why it could be regarded as admissible.
- Ms Gilchrist is ordered to pay half of C & C's costs of the proceedings in the FTT, to be assessed on the standard basis in default of agreement.
- Nevertheless Ms Gilchrist's appeal of the costs decision succeeds on this point; she should not have been ordered to pay all of C & C's costs for the period after she refused the offer.