Disputes over land are often riddled with layers of complex legal issues and competing facts that are fortified by the sentiment and principle of the parties. Even though resolving matters as between the parties is preferable, sometimes this simply isn’t possible, so selecting the correct arena for the dispute to be heard is fundamental. It can have a direct bearing on the result achieved.
Vital considerations when picking the correct arena extend to the subject matter to be determined, the nature of the remedy sought and the desire for cost recoverability to be secured.
In this joint Article, Catherine Gregson of Dyne Solicitors considers some of the circumstances in which you would select the Tribunal over a County Court and Helen Appleby of Clarion Legal Costs considers the cost implications of selecting one arena over the other. Given the two fundamentally different approaches of the judicial bodies, selecting the right arena is key.
Tribunal v County Court
A general ‘rule of thumb’ would be that a party would choose the First-tier Tribunal (Property Chamber), rather than the County Court, if a dispute is deemed to fall within the Tribunal’s specialist statutory jurisdiction and the party wants:
- A specialist determination on a property issue (such as a land registration issue, lease variation or service charge issues, to give some examples, rather than seeking a more general civil remedy
- A more proportionate and less formal forum, which can mean simpler case management, less rigid evidential presentation and a more inquisitorial approach
- A forum where adverse costs exposure is usually more limited than in the County Court
That said, it is important to balance the expertise and specialisms of the Judges sitting in the Tribunal against the jurisdiction that the Tribunal has. The Tribunal has limited jurisdiction – it is a statutory and confined body and it cannot grant all remedies. For example, if a party was desirous of damages, an injunction, possession or even allocation of enforcement powers, then the Court is the more appropriate arena. The Tribunal simply would not have the jurisdiction to determine such a remedy if sought, even if the subject matter fell into one of its areas of specialism.
In a nutshell, the main Advantages of the Tribunal in practice are:
- Specialist decision-makers in property matters
- Usually a more proportionate and less formal procedure
- Lower ordinary adverse costs risk
- Well-suited to reasonableness, valuation and leasehold management issues
- Can be the natural forum where statute gives a direct right to apply
- May be the best place to decide interim or preliminary issues
The Disadvantages are that it:
- Has limited jurisdiction
- Cannot grant the full range of civil remedies
- May require later Court proceedings for enforcement or money recovery
It is possible for matters to transfer between the two forums. A Court may, for example, transfer a specialist question to the Tribunal and either retain or adjourn the remainder of the proceedings. A transfer of proceedings in the whole or on a discrete point would be driven by considerations such as the benefit of the Tribunal’s specialist expertise, proportionality in doing so, likely cost savings and whether there would be any issues which must remain with the Court.
Cost Recovery in Tribunals vs Courts
Cost recovery plays a key role in litigation strategy, but tribunals and civil courts in England and Wales take fundamentally different approaches.
Courts follow the well‑established “loser pays” principle, meaning the unsuccessful party usually contributes significantly to the winner’s costs. This promotes procedural discipline, early settlement and a cautious approach to speculative claims.
Tribunals, by contrast, were designed to be accessible, informal and cost‑effective. Cost orders are the exception rather than the rule and are only available in limited circumstances, usually where a party has acted unreasonably, pursued a misconceived claim or defence, or caused wasted costs. Even a fully successful party has no automatic right to costs.
Tribunals have a wide scope when it comes to cost orders, with the ability to apply a per cent cap recovery to any costs awarded if a specific element of the litigation is believed to be disproportionate, unreasonable, or excessive.
In Tribunal claims, once you have your costs order, the detailed assessment of costs is generally carried out by the Tribunal itself rather than being transferred to the civil courts. The Tribunal applies the Civil Procedure Rules by analogy, but with greater procedural flexibility and a strong emphasis on proportionality and efficiency. Unlike the courts, where costs assessments are conducted by specialist Costs Judges under CPR Part 47, the Tribunal will usually undertake a more streamlined, tribunal‑led assessment.
The Tribunal may adopt a “broad‑brush” approach, dispense with some formal requirements, such as service of Notice of Commencement and payment of a Court Hearing fee, and tailor the process to the nature of the dispute, the conduct of the parties and the need to keep costs proportionate to the issues. As a result, while the principles of reasonableness and proportionality mirror those in the courts, the process is typically faster, less rigid and more bespoke, reflecting the Tribunal’s broader objective of ensuring accessible and cost‑effective dispute resolution.
Our specialist teams can support you with your legal rights and responsibilities so that you do not get caught out. Contact Catherine Gregson from Dyne Solicitors or Helen Appleby from Clarion today for help.