England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WATFORD COUNTY COURT
(HIS HONOUR JUDGE KENNY)

		Royal Courts of Justice The Strand London Wednesday 29 August 2001

Wednesday 29 August 2001

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal part of an order for costs made by His Honour Judge Kenny in the Watford County Court on 5 June 2001 at the end of a trial of a personal injury claim.
2. The claimant caught her foot in a hole and fell, suffering some not very serious injury, when she was walking across a grassy area near a leisure centre in Ramsgate of which the defendant council were occupiers. The judge found that the council were not liable because they could not reasonably have been expected to have discovered the hole and filled it in before the accident.
3. The council had a maintenance contract with the Part 20 defendant, and their Part 20 claim alleged that if they were liable to the claimant, then the contractors were liable to them. The contractors would apparently have contended, if the issue arose, that this did not follow because their contractual liability was not necessarily the same under the contract as the council's liability under the Occupier's Liability Act 1957. However, they were both represented at the trial and made common cause to defeat the claimant's claim. The judge did not therefore have to decide any issues between them, and simply dismissed the Part 20 claim.
4. The council asked the judge to order the claimant to pay the contractors' costs. The contractors said that the council should pay their costs. The judge took the view, having regard to the size of the claim (proportionality), that it was unnecessary for the council and the contractors to be separately represented at trial. He simply gave the contractors their costs of filing a defence, but otherwise made no order for costs in the Part 20 proceedings. His reasons for doing this can be found in the transcript where he said to Miss Eagan, who appeared as counsel for the contractors at trial:

".... in this and the vast majority of cases of this type that I deal with" -- (and this is a very experienced judge) -- "the contractor who is undertaking a duty of maintaining on behalf of the local authority who obviously cannot do it themselves must obviously accept that if they in the course of contracting either cause or observe anything which might impose a liability on the local authority, they report it. It is on that basis that normally the parties get together for the saving of costs and also because, as was demonstrated in this case, there was no cross-examination of the Defendant's witnesses by you or vice versa. The evidence was in fact a joint defence of this case and that is exactly what I would have expected."

5. The contractors say that the judge's decision was unfair and wrong. Mr Evans-Tovey, who appears for them today, submits that it is unfair because the defendants had all the benefits of their Part 20 claim without suffering the burden of it having failed. Those benefits included the fact that the claimant might have joined the contractors as defendants in the proceedings; it gave weight to their defence that they had subcontracted the work of maintaining this ground to competent independent contactors; it gave them the benefit of having their claim tried at the same time as the trial of the claimant's claim and the benefit of the contractors' witnesses and discovery to support their defence. The down side of their having joined the contractors was that they might have to pay their costs if the defence was successful or if in some other way the claim against them failed, and yet the judge's order does not reflect that. It was wrong because the contractors had succeeded in their defence and costs should have followed the event. This was a state of affairs which had been brought about by the council themselves who had required their Part 20 claim to be heard at the same time as the main claim, and endorsed by the court which had made an order to that effect. In those circumstances it was wrong for the judge with the benefit of hindsight to have made the order which he did.
6. Costs, as everyone knows, are essentially within the discretion of the trial judge. I do not think that there are any hard and fast rules which apply to the exercise of that discretion in circumstances similar to those which arose in this case. The points made by Mr Evans-Tovey may be entirely valid in one case but not in another. On the facts of this case, there was no real difference between the council's duty under the 1957 Act and the contractors' duty under their contract with the council. If the council had lost they would have been able to pass on their liability to the contractors. Each party's defence was the same: We could not have been expected to have discovered and dealt with this hole before the accident.
7. In my judgment, therefore, the judge was acting well within the discretion which he had by making the order which he did, not least because of the modest size of the claim. Like Pill LJ, who refused this application on paper, I do not think the contractors have any real prospect of persuading this court to interfere with the judge's order. Accordingly, permission to appeal is refused.