Mayor and Burgesses of the London Borough of Tower Hamlets v Khan [2022] EWCA Civ 831 (21 June 2022)

Mayor and Burgesses of the London Borough of Tower Hamlets v Khan [2022] EWCA Civ 831 (21 June 2022)

The Council was not contractually entitled to recover the costs of the County Court and FTT proceedings under clause 3(9) of the lease as they were not 'incidental to the preparation and service' of a section 146 notice, particularly as no such notice was ever prepared or served. The Council could not rely on costs incurred 'in contemplation of' forfeiture proceedings as this was not argued below. However, the Council was entitled to its County Court costs under section 51 of the Senior Courts Act 1981 as the successful party, but not to the costs of the FTT proceedings, given the distinct costs regime in the FTT and the FTT's refusal to make a costs order.

Citation
[2022] EWCA Civ 831
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, Contractual Costs Recovery, Forfeiture of Lease, Section 146 Law of Property Act 1925, Section 51 Senior Courts Act 1981, Costs in Tribunal and Court Proceedings
Landlord and Tenant Property Law Civil Procedure Service Charges Contractual Costs Recovery Forfeiture of Lease Section 146 Law of Property Act 1925 Section 51 Senior Courts Act 1981 +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 22 Party arguments 2 Amounts and remedies 4
Sign in to unlock

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
  2. 2 Whether the Council could recover costs as incurred 'in contemplation of' forfeiture proceedings
  3. 3 Whether the Council was entitled to costs under section 51 of the Senior Courts Act 1981 for County Court and FTT proceedings

Ratio Decidendi

The Council was not contractually entitled to recover the costs of the County Court and FTT proceedings under clause 3(9) of the lease as they were not 'incidental to the preparation and service' of a section 146 notice, particularly as no such notice was ever prepared or served. The Council could not rely on costs incurred 'in contemplation of' forfeiture proceedings as this was not argued below. However, the Council was entitled to its County Court costs under section 51 of the Senior Courts Act 1981 as the successful party, but not to the costs of the FTT proceedings, given the distinct costs regime in the FTT and the FTT's refusal to make a costs order.

Court Disposition

Appeal allowed in part

Orders

  • District Judge's order set aside insofar as it awarded the Council contractual costs for the FTT and County Court proceedings under the lease.
  • Council awarded its County Court costs under section 51 of the Senior Courts Act 1981, on the standard basis.