Senada Ziga & Ors v Darren Stuart Yarnold & Ors

This appeal is from two determinations of the First-tier Tribunal, Property Chamber concerning the assessment of the costs of proceedings relating to the entry of restrictions on the registered titles of two parcels of land in Wigan. It is not necessary to refer to the substance of the dispute other than to note that it involved complex legal issues which were considered on appeal from the FTT’s substantive decision in Yarnold v Ziga [2023] UKUT 284 (LC) . The appellants were the successful parties in those proceedings both before the FTT and on the subsequent appeal to this Tribunal and orders were made for the payment of their costs by the respondents.

The first appellant, Mrs Ziga, and the third appellant, Dr Razoq, are a married couple; the second and fourth appellants are companies owned by them. Throughout the proceedings the appellants have been represented by Dr Razoq. Dr Razoq is a medical doctor who works as a locum consultant in the NHS in a number of specialisms.

The costs of the proceedings before the FTT have been the subject of detailed assessment by the costs judge. In an order of 9 May 2024, the costs judge determined that the hourly rate which should be allowed to Dr Razoq in the detailed assessment should be limited to £19 on the basis that he had failed to prove any greater financial loss. The costs judge granted permission to appeal that determination on 19 June 2024, but the appeal was subsequently stayed pending the completion of the detailed assessment.

By a second order of 27 May 2025, the costs judge determined that the time which Dr Razoq had reasonably spent in conducting the proceedings before the FTT totalled 697.5 hours, and that Mrs Ziga had devoted a further 358.7 hours to research and preparation. On the basis that the allowance for Dr Razoq’s time was limited to £19 an hour, the costs judge assessed the sum to which he was entitled at £13,252.50. Mrs Ziga was entitled to the sum of £6,815.30. In addition the couple were allowed various disbursements including a modest fee for the advice of counsel at one stage of the proceedings.

The costs judge also determined that, if the costs recoverable by Dr Ziga were not limited to £19 an hour, and if he was entitled to recover the rate he would have been paid in his work as a locum consultant, the uncapped charge for his time would have been £86,557.50. That figure would then have been capped at £40,890 to reflect the limit place on the costs recoverable by a litigant in person by CPR r.46.5(2), which applies to the assessment of costs in the FTT by rule 13(8), Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, and limits the costs allowable to a litigant in person to two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

The costs judge gave permission to appeal his second determination so far as it concerned the application of CPR r.46.5(2).

The appeal has been conducted in writing.

The bill of costs submitted by Dr Razoq sought payment of £121,480. Time spent on the proceedings by Mrs Ziga was claimed at the default rate for a litigant in person of £19 an hour. Dr Razoq’s time was claimed at the rate he earned working as a locum consultant in the NHS, which was £125 an hour.

where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or

where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46 [£19 per hour].

The burden of proving financial loss falls on the litigant in person, as sub-paragraph (a) of rule 46.5 (4) makes clear. In this regard, the costs judge referred to the following passage in the judgment of Robert Walker J in Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467 , 477j:

“Whether a litigant in person has suffered significant loss of earnings is a matter peculiarly within his or her own knowledge. Sometimes the position will be obvious and each side will accept it without the need for any affidavit evidence: at one extreme, for instance, a self-employed tradesman in a small but profitable way of business, who has more customers than he can cope with and can fill every working hour to advantage; at the other extreme, a retired civil servant with an indexed-linked pension who finds the conduct of litigation a more interesting pastime than bowls or crossword puzzles.”

Although Robert Walker J was applying the law before the introduction of the Civil Procedure Rules his observations remain applicable. Dr Razoq’s case was that his situation was analogous to that of the self-employed tradesman who has more work available to him than he could take on and who can “fill every working hour to advantage”.

The costs judge referred to the evidence relied on by Dr Razoq in support of his claim, which comprised his own witness statement (undated), his written submissions of 3rd May 2024 and documents comprising an undated letter bearing a statement of truth made by James Jackman, Managing Director of Emergency Department Staffing Ltd, various booking confirmations, some timesheets and a pay slip. The judge said that he would take all of that material into consideration before continuing:

“Dr Razoq seeks to charge his time spent on the case at the rate that he is able to command for his locum hospital consultant work, namely £125 per hour (see the witness statement of James Jackman). However, since he is not a legal representative but a litigant in person, it is not open to the Third Respondent to simply claim such an hourly rate as the rules of court stipulate that, unless he can prove financial loss, time spent by him on the matter will be allowed at the prescribed rate of £19 per hour. Whilst I do not doubt that the Third Respondent is a highly regarded locum hospital consultant, who is much in demand, the evidence that he has produced falls short of the mark. The Third Respondent has not clearly demonstrated that he has suffered financial loss with any degree of specificity. He has not produced financial records, bank statements, accounts or tax returns, or any calculation based on such, tending to show that over the period of the claim he suffered a downturn in income due to his attention to the case.”

The respondents support the costs judge’s reasoning and invite me to dismiss the appeal on this issue on the basis that the judge was entitled to find the evidence did not prove the loss claimed. In their submissions they refer to the difficulty of assessing claims for loss “particularly for individuals with irregular or uncertain income sources”. I do not think that is an apt description of Dr Razoq’s earning capacity. On the evidence, which appears to have been accepted by the costs judge, he was much in demand.

I have been reminded that this is an appeal on point of law only. That is an important consideration and its effect in this appeal is that before I may interfere with the costs judge’s determination I must be satisfied that he has left out of account, or taken into account, some feature that he should, or should not, have considered. I have also been referred to a number of decisions in other assessments where evidence either was or was not sufficient to discharge the evidential burden on the receiving party. I have not found these of assistance as they deal with very different facts and do not purport to lay down general principles.

Although the costs judge identified material which Dr Razoq had not produced, it is striking that he referred to the material which Dr Razoq did rely on only to identify it, and did not consider in any detail what it showed, nor whether it discharged the burden of proving that he had suffered a financial loss as a result of his participation in the proceedings. The main complaint which emerges from Dr Razoq’s submissions in support of his appeal is that the costs judge failed to give proper consideration to the evidence presented to him and instead measured the evidence which was not produced and which he considered could have been.

Dr Razoq supported his application with a detailed chronology and schedule of time spent on the proceedings. The dispute commenced in earnest in July 2018 when the Land Registry referred the appellants’ application for the entry of restrictions on the Register to the FTT. It was managed at two case management hearings and progressed to a hearing over two days in December 2022. Dr Razoq’s case was that while the dispute continued he had devoted in excess of 800 hours of his time to researching the law, preparing documents, and participating in the proceedings, and that had he not been engaged in litigation, he would have been engaged instead in remunerative work. The costs judge did not suggest that Dr Razoq’s account of the time he had incurred was significantly exaggerated or unreliable, and he accepted that he had reasonably spent 697.5 hours on work for which he was entitled to be compensated.

During the relevant period I have had to stay off work for very prolonged periods in order to deal with this extremely complex litigation. Most of the time there was no possible way that I could work full time with the stresses of a doctor’s life and attempt to deal with this litigation in my spare time. It required my full attention when steps had to be taken.

To my best estimation I have stayed off work in order to do these litigations for the amount of hours stated in the attached Schedules of Cost.

…

The complex and exceptional nature of the claim has resulted in my suffering substantial losses because of having to take time off work, and consequently there has been a pecuniary loss, and I would request the Tribunal to assess the costs on my true hourly rate, evidence of which is exhibited to this statement.”

Dr Razoq’s case was supported by a letter, signed by Mr Jackman, Managing Director of the staffing agency through which his locum work was arranged. The letter included a statement of truth and testified to Dr Razoq being a keen and hardworking doctor who was willing to travel all over the country and to work long hours. Due to his seniority, skills, flexibility and willingness to work unsocial hours, “he was in very high demand if he wished”. Mr Jackman added that:

“Dr Razoq has stayed off work for a long period of time over the years. When he would not accept the job offers he would tell me he was involved in a litigation battle that I was made aware.”

Dr Razoq also relied on the approach which I took when I summarily assessed the costs of the appeal to this Tribunal. I was satisfied on the evidence that there were periods of time when it would not have been possible for him to prepare and present his the appeal while also engaging in his usual remunerative work, and I made a rough apportionment. Dr Razoq criticised that apportionment but relied on the fact that he had succeeded in proving loss to my satisfaction relying on very similar evidence (in fact the evidence was rather less substantial, as it did not include the statement of Mr Jackman).

It is of significance that the respondents do not appear to have challenged the assertion by Dr Razoq, which was confirmed by Mr Jackman, that he had had to stay off work for prolonged periods in order to deal with the complex litigation in which he had become involved. The respondents’ submissions to the costs judge on the appropriate rate to be awarded for Dr Razoq’s time focussed on the absence of the sort of documentary evidence which had been adduced in a different case involving a company director ( Spencer Paul v Paul Jones Financial Services Ltd ). There, as the costs judge noted in his decision, a good deal of supporting evidence had been produced, including company accounts.

There is no suggestion in the costs judge’s decision that Dr Razoq was cross examined on the evidence he gave about the impact of the proceedings on his ability to work. The costs judge accepted that Dr Razoq was “a highly regarded locum hospital consultant, who is much in demand”.

The other material relied on by Dr Razoq comprised a selection of time sheets and pay slips (seven in total) which he relied on to demonstrate his earning power. They showed that he was able to obtain locum work for up to 111 hours a week, working long day shifts immediately followed by night shifts when he would be on call from home. The documents recorded weekly earnings and engagements in specific weeks in January and March 2020, December 2023 and February 2024. The same material (and Mr Jackman’s statement) supported the claimed average rate of £125 an hour.

It is apparent from the passage from the decision which I have quoted above, that the costs judge was not persuaded by the evidence provided that Dr Razoq had suffered any financial loss. The judge accepted that Dr Razoq was much in demand but stated that the evidence he had produced “falls short of the mark” and did not clearly demonstrate financial loss “with any specificity”. What was said to be missing was financial records, bank statements, accounts or tax returns or any calculation tending to show Dr Razoq had suffered a downturn in income due to his attention to the case.

Dr Razoq complained that the documents which the judge had referred to would have established what he did earn, not what he did not earn, and that his own uncontradicted and unchallenged evidence was sufficient to establish that he was not able to work full time and undertake the tasks required in the litigation, he was not able to deal with the litigation in his spare time, and he was not paid except when he worked.

I am satisfied that the costs judge failed to make a proper assessment of Dr Razoq’s evidence and, in particular, failed to consider the consequences of the absence of any challenge to the veracity of that evidence. The judge was satisfied that the time reasonably incurred by Dr Razoq on the proceedings was almost 700 hours, or more than 17 normal working weeks, in a period of about four years. Most of that activity was concentrated in the period between February and June 2019, when statements of case were exchanged and the first case management hearing took place, between April and September 2021, when disclosure occurred, witness statements were exchanged and a second case management hearing took place, and especially between August and December 2022 when Dr Razoq was engaged in research, drafting of written argument and applications, preparation for and attendance at the final hearing. Dr Razoq’s uncontradicted evidence was that it was not possible to combine the level of work involved in these periods with his practice as a locum consultant. The costs judge did not say whether he accepted that evidence or not, and the impression given by the decision is that he did not consider that question. But it was the critical issue in the assessment.

Had the costs judge focussed on the evidence which was presented by Dr Razoq, rather than on material which he did not rely on, the absence of any challenge to his or Mr Jackman’s witness statements would have been immediately obvious. As the costs judge was satisfied that Dr Razoq had spent almost 700 hours engaged in work on the proceedings, the absence of any challenge to his evidence about the impact that burden had on his ability to carry on his professional work ought to have led to only one conclusion. That was that for substantial periods of time Dr Razoq was unable to accept locum work, or as much locum work as he would otherwise have accepted, because he was engaged in the litigation.

In my judgment the costs judge’s omission to give consideration to what Dr Razoq’s uncontradicted evidence did establish was an error of law which requires that his determination on the applicable rate be set aside.

The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

The costs judge’s primary assessment assumed, in accordance with his original decision, that Dr Razoq should recover only the £19 an hour allowed to litigants in person who have been unable to demonstrate a financial loss. But in case he was wrong about that issue he also considered the sum which would have been payable if Dr Razoq was allowed his average professional rate of £125 an hour. One consequence of an assessment at that rate was to engage r.46.5(2) and the costs judge considered how it would apply.

The costs judge first determined that, had the appellants been represented, it would have been reasonable for them to have instructed Central Manchester Solicitors and for the work done by those solicitors to have been conducted at the level of a Grade A solicitor assisted by a Grade D fee earner. He then applied the two thirds rule, as follows:

“Generous time has been allowed to the Third Respondent, as a Litigant in Person, on assessment, particularly in relation to items of research, review, consideration of and preparation and drafting of documents; a total of very nearly 700 hours has been allowed to the Respondent. In my judgment the time that would reasonably have been spent by a Grade A Solicitor on preparation of the case is around one third of that time, namely 235 hours. At an hourly charging rate of £261 this amounts to £61,335. The costs allowed to the Third Respondent on basis (2) may not exceed two-thirds of such sum, that is the sum of £40,890.

It can be seen that the costs judge treated Dr Razoq and Mrs Ziga as if the rule applied to each of them separately and as if the amount they could recover must be limited by reference to their relative contribution to the work required to present their case, with Dr Razoq being limited to two thirds of the rate charged by a Grade A solicitor, while Mrs Ziga could recover no more than two thirds of the rate chargeable by someone at Grade D.

Amongst a number of points Dr Razoq made about the costs judge’s application of the two thirds rule, he submitted that it was wrong in principle to allocate roles to litigants in person in the way the judge had done. The correct approach, he suggested, was to determine how much the appellants would have recovered in total had they been represented and then apply the two thirds rule to that amount.

The respondents’ submissions on this aspect of the appeal were limited to the bald proposition that the costs judge had not erred in principle without any argument being offered in support of his approach.

It seems clear to me that the costs judge did err in principle and that there is no sanction in the rule for the approach which he took. The rule requires consideration of the amount which would have been allowed if the litigant in person had been represented by a legal representative. The approach taken by the costs judge was to consider how much would have been allowed for each of the appellants if they had each been a legal representative and they had jointly been instructed to conduct the litigation. That is not the question posed by the rule.

The costs judge’s conclusions about the level of fee earner and the amount of time which would have been allowed on an assessment if the appellants had been legally represented should have produced a starting point of £76,455 (£61,335 for a Grade A solicitor plus £15,120 for a Grade D fee earner). Two thirds of that figure is £50,970, not the aggregate figure of £47,705 which the costs judge allowed.

Dr Razoq’s next point is that, had he engaged solicitors to represent him in a case of this complexity they would inevitably have instructed counsel to attend the hearing, as the respondents did. The costs judge did not mention representation at the hearing and did not suggest that the appellants would not have recovered the cost of instructing counsel had they chosen to do so. Having regard to the subject matter there seems to me to be no doubt that the fees of appropriate counsel would have been allowed, and the respondents did not suggest otherwise, either in their points of dispute for the assessment or in their submissions on the appeal.

The costs judge referred in his decision to the estimate of counsel’s fees provided by the respondents which (assuming a three day hearing) was £19,200. The hearing took two days, not three, and it seems reasonable to assume that, had counsel been instructed, their fee would have been £15,000. Had counsel been instructed it is also reasonable to assume that an additional fee for the Grade A solicitor’s attendance at the hearing would have been disallowed, reducing the charge for their involvement by, perhaps £4,000. A net addition of £11,000 to the costs which are reasonably likely to have been recoverable had the appellants been represented therefore seems justified. The aggregate sum allowed would therefore be £87,455, two thirds of which is £58,303.

Dr Razoq also criticised the decision not to allow Central London charging rates and challenged the costs judge’s assessment of the time of legal representatives which would have been allowed on an assessment of the cost, describing the figures taken into account as “implausibly low”. Neither of these criticisms is sustainable. First, because no grounds have been shown for doubting the correctness of the costs judge’s assessment, and secondly, because permission to appeal on this aspect of the assessment was refused both by the costs judge and in my own order of 1 August 2025.

For these reasons I allow the appeal on issue 2.

The effect of correctly applying the two thirds rule is that the maximum amount the appellants may recover is limited to £58,303. At Dr Razoq’s average hourly rate for locum work of £125, that represents a charge for 466 hours. The costs judge was satisfied that Dr Razoq had reasonably incurred almost 700 hours so the effect of applying the cap imposed by CPR r. 46.5(2) is to limit recovery to two thirds of the time reasonably spent, as well as to two thirds of the costs which would have been allowed for professional representation.

When I determined the costs of the appeal (on different evidence) I assumed that during periods of less intense activity, Dr Razoq would have been able to undertake some litigation tasks at times when he was not working, without the need to reduce his working hours. I took the view that he had not shown that he had incurred a loss during those less intense periods. It may be that some of the work carried out while the proceedings were in the FTT could also have been done without requiring Dr Razoq to take time off work, but it has not been suggested by the respondents that any further apportionment of Dr Razoq’s time should be attempted. In any event, I am satisfied that there is a sufficient allowance in the 230 hours of irrecoverable time to accommodate non-loss making periods and that it is unnecessary to make any further apportionment.

Martin Rodger KC