Ziga v Yarnold: Upper Tribunal clarifies litigant in person costs and the two-thirds rule

In Senada Ziga & Ors v Darren Stuart Yarnold & Ors [2026] UKUT 181 (LC), the Upper Tribunal (Lands Chamber) has allowed an appeal against two costs determinations made by a First-tier Tribunal costs judge, addressing the evidential threshold for proving financial loss by a litigant in person and the correct methodology for applying the two-thirds cap under CPR r.46.5(2).

The appellants were represented throughout by Dr Razoq, a locum NHS consultant and husband of the first appellant, who sought recovery of his time at his professional rate of £125 per hour. The costs judge limited him to the default £19 per hour on the basis that he had not proved financial loss with sufficient specificity — noting the absence of bank statements, tax returns or accounts. He also applied the two-thirds rule individually to each appellant rather than to the combined notional costs of professional representation.

Financial loss: the evidential threshold

Deputy Chamber President Martin Rodger KC found that the costs judge had committed an error of law by concentrating on what evidence had not been produced rather than properly evaluating what had. Dr Razoq's unchallenged witness statement explained that the litigation — spanning more than 697 hours over four years — had required him to take substantial periods away from locum work, during which he earned nothing. That account was corroborated by a statement from the managing director of his staffing agency confirming that Dr Razoq had been in high demand and had turned down work due to litigation commitments.

Applying the principles in Mainwaring v Goldtech Investments Ltd [1997] 1 All ER 467, the Tribunal held that uncontradicted evidence from a self-employed professional — who is remunerated only when working and who demonstrably spent the equivalent of more than 17 working weeks on litigation — is sufficient to discharge the burden under CPR r.46.5(4)(a). The costs judge's failure to engage with that question, rather than simply cataloguing absent documentation, was a material omission.

The two-thirds cap: a single composite calculation

On the second issue, the Tribunal held that the costs judge had erred in applying CPR r.46.5(2) by assigning each appellant a notional fee earner grade and then capping each recovery individually. The rule requires a single comparison: what would have been recoverable had the litigants been professionally represented? The correct starting point was the aggregate of all notional professional costs — £61,335 for a Grade A solicitor and £15,120 for a Grade D fee earner — with the two-thirds limit applied to that combined figure.

The Tribunal also found that the costs judge had wrongly omitted counsel's fees from the notional costs of representation. Given the complexity of the proceedings, it was inevitable that solicitors would have briefed counsel for the hearing. Referencing the respondents' own estimate, a net addition of £11,000 was allowed for counsel's fees after adjusting for the solicitor's attendance time that would not separately have been recoverable. The total notional costs of representation rose to £87,455, producing a cap of £58,303 — compared with the £47,705 originally determined.

The respondents were ordered to pay that sum to the appellants, together with the disbursements allowed at first instance. Costs of the appeal were reserved pending submissions.