Ruling of the Tribunal in relation to an application by BAA for costs against the Commission.
The Tribunal considered that in establishing that the Report was affected by apparent bias and in overcoming the Commission’s contentions (made as alternatives to the denial of apparent bias) that any such apparent bias had been waived by BAA or was not such as to “taint” the other decision-makers, BAA had succeeded in its challenge. The principles set out by the Tribunal in Tesco (costs) indicated therefore that an award of costs in favour of BAA was likely to be appropriate as a starting point. The Tribunal did not consider that the fact that BAA failed on the proportionality ground meant that the Tribunal should maker no order as to costs, as such an order would not reflect the real outcome of the proceedings and it was clear that the allegation of apparent bias was the major ground of BAA’s application.
However the Tribunal considered that the Commission’s success on the proportionality ground, being a discrete and important point, albeit somewhat less substantial, needed to be fairly reflected in the costs award. In all the circumstances, the Tribunal decided that BAA should receive 75% of its reasonable and proportionate costs incurred in arguing the apparent bias ground, such costs to include the post-judgment costs relating to relief, permission to appeal and costs. The Tribunal considered that the costs should be subject to detailed assessment on the standard basis by a costs officer of the Senior Courts Costs Office pursuant to rule 55(3) of the Tribunal Rules if not agreed. The difficulties of apportionment which can arise in relation to an issues-based order would be avoided here as different solicitors had been instructed by BAA for the apparent bias issue, and so far as counsel’s fees were concerned the assessment should be on the basis that 60% of those fees were in respect of that issue.
Finally, the Tribunal refused to order that any payment of costs be stayed pending the Commission’s renewed application for permission to appeal the Main Judgment to the Court of Appeal or any subsequent appeal.
