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Costs in specific cases

This content applies to England & Wales

Issues in housing cases with regard to costs.

Fixed costs in housing repossession cases

There are fixed costs for certain housing (and other property cases) as follows:

  • the claim is for the recovery of land, whether or not the claim includes a claim for a sum of money, and the defendant gives up possession, pays the amount claimed, if any, and the fixed commencement costs stated in the claim form
  • the claim is for the recovery of land, where one of the grounds for possession is arrears of rent, for which the court gave a fixed date for the hearing when it issued the claim and judgment is given for the possession of land (whether or not the order for possession is suspended on terms) and the defendant:
    • has neither delivered a defence, or counterclaim, nor otherwise denied liability
    • has delivered a defence which is limited to specifying his proposals for the payment of arrears of rent
  • the claim is an accelerated possession claim of land let on an assured shorthold tenancy and a possession order is made where the defendant has not delivered a defence or counterclaim, or otherwise denied liability
  • the claim is a demotion claim and that demotion claim succeeds.

In most cases, the costs on issue of proceedings and the costs of the hearing are fixed. In addition, court fees are payable.[1] The fixed costs can be disapplied by the court, which can allow higher costs claims,[2] and in any event fixed costs do not apply to defended cases.

Certain housing cases in the high court

The Rent Act 1977 and the Housing Acts 1985 and 1988 make provision for a court case to be commenced in the county court against a Rent Act protected tenant, a Housing Act 1988 assured tenant and a 1985 Housing Act secure tenant, and if a court case is brought in the High Court instead, a landlord is not entitled to recover any costs (or in the case of assured tenancies, can recover costs limited to those that would have applied in the county court).[3]

Mortgage cases

The terms of most mortgages provide that lenders are entitled to their costs, charges and expenses reasonably and properly incurred in preserving the security or recovering the mortgage debt including the costs of possession proceedings.

If the lender has acted unreasonably, the borrower or her/his solicitor should ask at the hearing for an order preventing the lender from adding any costs to the security in relation to the whole case, or for a particular hearing.

The borrower can ask the court to subject the lender's solicitor's costs to a detailed assessment, but should take advice before doing so, as it may lead to even larger costs.

Costs are likely to be added to the amount still owed under the mortgage and paid out of the proceeds of sale rather than collected from the borrower. However, this will depend on the terms of the mortgage.

Lenders can add costs to the amount outstanding under the mortgage even where the borrower is receiving legal aid.[4]

Judicial review cases in the High Court

There have been a number of cases dealing with the appropriate types of costs orders that should be made in judicial review cases in the High Court.[5] Most of these cases involved publicly funded individuals bringing an action against local or central government, and have often been settled before the final hearing, possibly with a concession on the part of the authority.

If the authority has offered a concession to settle the case and the publicly funded person's solicitor wants an order for costs, and the authority does not agree but wants each side to bear her/his own costs, it will be for the court to decide on the application.

Where a judicial review claim is discontinued, the normal rule is that the party who discontinues should pay the other party's legal costs.[6] However, in one case, the defendant's costs were reduced by 15 per cent to reflect the defendant's failure to comply with the pre-action protocol for judicial review claims.[7]

Tribunal cases

In the First-tier Tribunal (Property Chamber) and Upper Tribunal (Lands Chamber) the rules provide for the parties to pay their own costs (known as 'no costs shifting'). The rules permit the Tribunals to make an order allocating costs to one party only where that party has acted unreasonably.[8]

A costs order may be made in a land registration case whether or not there has been unreasonable conduct.[9]

[1] Civil Procedure Rules, rules 45.1, 45.2A, 45.4A.

[2] Civil Procedure Rules, rule 45.1(1).

[3] S.141 Rent Act 1977, s.110 Housing Act 1985, s.40 Housing Act 1988.

[4] This is not a breach of s.11 of the Access to Justice Act 1999 because the costs are considered to be recovered from the security, not the borrower.

[5] For example, Boxall and Boxall v Waltham Forest LBC 21 December 2000, QBD; R v Southwark LBC, ex parte Kuzeva [2002] EWCA Civ 781; and R v Environment Agency, ex parte Beevers and others, 27 November 2001, QBD.

[6] Civil Procedure Rules, rule 38.6(1).

[7] Aegis Group Plc v Inland Revenue, sub nom Re Aegis [2005] EWHC 1468 (Ch).

[8] reg 13 Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 SI 2013/1169; reg 3 Tribunal Procedure (Amendment No. 3) Rules 2013 SI 2013/1188.

[9] reg 13(1)(c) Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 SI 2013/1169.

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