Norma Hortense Beharie v Swift Advances Plc

Introduction

1. This is Ms Beharie’s appeal from a decision of the First-tier Tribunal (“the FTT”) about costs, dated 14 August 2020. She appeals with permission from the Tribunal, and the appeal has been decided under the written representations procedure. Ms Beharie has not been legally represented; the respondent was represented by Brachers solicitors. The factual background

2. The decision under appeal was made some months after an order for costs that followed the FTT’s decision (“the substantive decision”) in a reference to the FTT from HM Land Registry. Ms Beharie sought to remove from the register a unilateral notice entered by the respondent, and she was unsuccessful. She applied for permission to appeal that decision; the FTT refused permission, and so did the Tribunal. After that refusal the Tribunal made an order for costs against Ms Beharie, assessed in the sum of £750, because the respondent’s solicitors had assisted the Tribunal with written submissions. I mention that order for costs, to which Ms Beharie has referred in her written submissions on this appeal, only in order to make it clear that it is irrelevant to this appeal.

3. This appeal arises from the costs order made by the FTT after the substantive decision.

4. I take the following chronology from a letter sent to the FTT by the respondent’s solicitors, Brachers, on 27 April 2020. What they say happened was as follows: a. Following the substantive decision, on 21 June 2019 a costs order was made in the respondent’s favour. b. On 12 August 2019 the respondent filed with the FTT and sent to Ms Beharie its detailed bill of costs. c. On 18 September 2019 the FTT ordered that the costs be subject to detailed assessment on the standard basis by a costs judge. d. On 10 October 2019 the respondent sent to Ms Beharie its detailed bill of costs and copies of counsel’s fee notes. e. On 21 November 2019 the respondent sent to the FTT and served on Ms Beharie a request for a default costs certificate, which is an order requiring a party to pay costs in full where he or she has not served points of dispute. The respondent’s solicitors in a letter to the FTT on that date said “We do not consider that [Ms Beharie’s] letters dated 28 August 2019 and 1 November 2019 constitute any Points of Dispute raised by [Ms Beharie].” f. On 10 December 2019 the FTT made an order providing that the respondent’s request for a default costs certificate be granted in the event that Ms Beharie failed to serve and file points of dispute by 20 December 2019. g. On 11 February 2020 the FTT wrote to Ms Beharie as follows: “The deputy master has read your latest email and would point out that the issue is not whether you filed points of dispute but whether they complied with the Civil Procedure Rules and their Practice Directions. They did not do so and therefore an opportunity was given so that you could serve compliant Points of Dispute. That was not done. Accordingly your opponent has become entitled to their costs in the sums sought in their bill.” I take it that the “deputy master” was the FTT costs judge who was to have carried out the detailed assessment. h. The respondent wrote to the FTT on 27 February, 11 March and 23 March 2020, and again in the letter of 27 April from which all the material in this paragraph is taken, asking for a default costs certificate.

5. Ms Beharie has supplied copies of letters referred to in item e above. Her letter of 28 August 2019 was addressed to the FTT, headed “Formal complaint”, and copied to Brachers; in it she set out her objections to Brachers’ bill of costs. The letter of 1 November 2019 was written to this Tribunal and is about the costs claimed against her following its refusal of permission to appeal the substantive decision. The letter of 1 November 2019 is entirely unrelated to this appeal and I make no further reference to it.

6. On 14 August 2020 (following delays arising from the closure of the FTT’s offices during the pandemic) the FTT made an order: a. setting aside its order of 18 September 2019 referring the assessment of costs to the costs judge, b. setting aside the order of 19 December 2019 because the FTT does not have jurisdiction to issue a default costs certificate, c. determining that the costs were to be the subject of summary assessment, d. summarily assessing the costs in the sum of £43,437.41 and e. requiring Ms Beharie to pay the respondent the sum of £43,437.41 by 4 September 2020.

7. In her reasons for that order the judge observed that Ms Beharie: “has not raised any objection to the bill of costs, and has not responded to the order of 20 December 2019, nor communicated with either the Tribunal or the Applicant. The fact that this order has now been set aside is not relevant to the issue I am considering, namely whether [Ms Beharie] has, at any time, taken any steps to object to the costs order sought or to make any representations in relation thereto.”

8. Ms Beharie appeals that decision; she says she did present points of dispute, in her letter of 28 August 2019, and moreover that the FTT in making its order of 14 August 2020 did not give her an opportunity to make representations. She says that the FTT through its case officer wrote to the respondent’s representative in April 2020 asking for information but did not seek any information from her; and that the judge in making her order did not give her an opportunity to explain her position. Had she had that opportunity she would have explained that she had already served points of dispute.

9. Instead, says Ms Beharie, the FTT judge in making the decision of 14 August 2020 relied only on documents provided by the respondent’s solicitors, who misled the FTT by not drawing attention to her letter of 28 August 2019.

10. Ms Beharie also says that she was not treated fairly by the FTT as a litigant in person; she was expected to be aware of and to comply with procedural requirements that she could not have been expected to be aware of.