The Mayor and Burgesses of the London Borough of Tower Hamlets v Ali Jivaraj Khan

The Mayor and Burgesses of the London Borough of Tower Hamlets v Ali Jivaraj Khan

The Council was not contractually entitled to recover its costs under clause 3(9) of the lease as the costs were not 'incidental to the preparation and service' of a section 146 notice, and no such notice was prepared or served. The Council could not rely on 'in contemplation of' forfeiture as this was not argued below. The County Court had no jurisdiction to award costs for the FTT proceedings; only the FTT could do so. The Council was entitled to its County Court costs under section 51 of the Senior Courts Act 1981, but not to FTT costs.

Parties
Claimant/respondent: THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS; Defendant/appellant: ALI JIVARAJ KHAN
Jurisdiction
England and Wales
Judgment Date
21 June 2022
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
Appeal allowed in part
Legal Topics
Service Charges, Forfeiture, Costs Orders, Lease Interpretation, Jurisdiction of County Court and FTT
Landlord and Tenant Law Civil Procedure Service Charges Forfeiture Costs Orders Lease Interpretation Jurisdiction of County Court and FTT

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Parties

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS

Claimant/respondent

ALI JIVARAJ KHAN

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether the Council was contractually entitled to recover costs under clause 3(9) of the lease as 'incidental to the preparation and service of a section 146 notice' or 'in contemplation of' forfeiture proceedings.
  2. 2 Whether the County Court had jurisdiction to award costs for the FTT proceedings under section 51 of the Senior Courts Act 1981.
  3. 3 Whether the District Judge's order for costs should be upheld on contractual or discretionary grounds.

Ratio Decidendi

The Council was not contractually entitled to recover its costs under clause 3(9) of the lease as the costs were not 'incidental to the preparation and service' of a section 146 notice, and no such notice was prepared or served. The Council could not rely on 'in contemplation of' forfeiture as this was not argued below. The County Court had no jurisdiction to award costs for the FTT proceedings; only the FTT could do so. The Council was entitled to its County Court costs under section 51 of the Senior Courts Act 1981, but not to FTT costs.

Court Disposition

Appeal allowed in part

Orders

  • Paragraph 2 of the District Judge’s order varied to provide that Mr Khan is to pay only the Council’s County Court costs, to be assessed on the standard basis if not agreed.
  • No costs order in favour of the Council regarding the FTT proceedings.