Expenses in the First Tier and Upper Tribunal

There has already been a fair amount of useful caselaw and comment on the subject of expenses in the First Tier and Upper Tribunal, however this has primarily focused on when expenses might be awarded, against whom and under what justification.

One aspect that has not received much focus is the quantification of expenses. If you are successful in being awarded costs, and are asked to provide a schedule, how are the figures to be calculated?

The answer is within the tribunal rules, namely The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and the Tribunal Procedure (Upper Tribunal) Rules 2008. Both sets of rules state that expenses are assessed according to:

(a) summary assessment by the Tribunal; (b) agreement of a specified sum by the paying person and the person entitled to receive the costs or expenses (“the receiving person”); or (c) assessment of the whole or a specified part of the costs or expenses [, including the costs or expenses of the assessment,] incurred by the receiving person, if not agreed.

What does this mean in practice? Well it is important to note that in Scotland the rules contain reference to the Auditors of either the Sheriff Court or the Court of Session, and a process known as 'taxation'. Taxation is crudely a process by which a disputed fee for legal services is assessed by an independent auditor according to a defined list of fees and in consideration of the work completed. The defined list of fees is very detailed and contained with the rules for the Sheriff Court or Court of Session. In the case of the First Tier Tribunal the tribunal can chose which court to refer to for the fees, for the Upper Tribunal it is always the Court of Session.

Therefore whilst the expenses can be decided on a summary basis by the tribunal it is likely that the fee tables applicable would be highly relevant to the figures. You cannot unfortunately just pick a figure and would be best advised to carefully consider the fees tables when drafting a schedule. It is also important to note that considering the Court of Session rules for example, the Auditor can consider:

(i) the complexity of the cause and the number, difficulty or novelty of the questions raised; (ii) the skill, labour, and specialised knowledge and responsibility required, of the solicitor; (iii) the time spent on the item of work and on the cause as a whole; (iv) the number and importance of any documents prepared or perused; (v) the place and circumstances (including the degree of expedition required) in which the work of the solicitor or any part of it has been done; (vi) the importance of the cause or the subject-matter of it to the client; (vii)the amount or value of money or property involved in the cause; and (viii) any informal agreement relating to fees.

I would suggest that the closer one can adhere to the relevant fees tables and rules in an expenses schedule the greater the chance of convincing a tribunal those expenses should be paid.