England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COURT
(HIS HONOUR JUDGE MARR-JOHNSON)

		Royal Courts of Justice Strand London WC2 Tuesday, 9th October 2001

Tuesday, 9th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application for permission to appeal against an order made by His Honour Judge Marr-Johnson on 26 April 2001 following the trial of the action. The application is made on behalf of Mr Lambrakis Lambrianou, the defendant in the action, and it is made on his behalf by Mr Marshall, solicitor, who appears on a pro bono basis (as he appeared before the judge at the trial).
2. In the action the claimants, Messrs Thomas Keaney, Christopher and Ignatious Keaney, who are builders, claim what they allege to be the balance outstanding in respect of building work carried out by them for Mr Lambrianou on his bungalow at 30/32 Elmcroft Gardens in Kingsbury. In the Particulars of Claim, the figure claimed was given as £16,472, however this was revised in the course of the hearing to £12,450. By his Amended Defence and Counterclaim Mr Lambrianou denied that any part of that sum was due to the claimants and he counterclaimed for substantial damages in respect of defective workmanship.
3. By his order, following the trial of the action, the judge entered judgment for the claimants in the sum of £12,450, together with interest in the sum of £4,100, making a total of £16,550. He also entered judgment for Mr Lambrianou on his counterclaim in the sum of £15,690. The order then went on to deal with the costs of the action. The judge ordered Mr Lambrianou to pay to the claimants one half of the costs of the action up to 15 March 2001, and he ordered the claimant to pay to Mr Lambrianou one half of his costs of the action up to that date. Thereafter he ordered Mr Lambrianou to pay the claimants' costs of the action. The significance of the date 15 March 2001 is that seven days previously the claimants had made a Part 36 offer which had turned out to be a fairly accurate reflection of what actually happened at trial. Permission is now sought by Mr Lambrianou, through Mr Marshall, to appeal against that part of the judge's order which deals with the costs of the action prior to 15 March 2001.
4. It is relevant that I should point out that, at the trial, the claimants were represented throughout by solicitors and counsel, whereas (as I indicated at the start of this judgment) Mr Lambrianou was represented on a pro bono basis by Mr Marshall of Lovells. In other words, Mr Lambrianou was, effectively, a litigant in person so far as the costs of the action were concerned.
5. The judge handed down his written judgment some time after the conclusion of the hearing, and on that occasion a separate hearing took place on the issues of costs. The judge did not (it seems) deliver a separate judgment on costs, nor, unfortunately, is there available a transcript of the hearing as to costs. On the other hand I have been provided with a full attendance note to which I now refer. It is apparent from the attendance note that the judge initially addressed the question of the significance of the Part 36 offer, concluding, as appears from his order, that given the terms of that offer it was appropriate that the claimants should have their costs of the claim and the counterclaim on the standard basis from 15 March 2001 onwards. The judge then turned to the question of the costs of the action and the counterclaim incurred prior to that date. In this connection, the attendance note reads as follows:

"In terms of the period prior to 15 March 2001, the judge's initial view was that the Defendant should pay the Claimants half of their costs of the action and that the Claimant should pay the Defendants half of their costs of the action prior to 15 March 2001. JM [that is Mr Marshall] submitted that there should be no order for costs prior to the Part 36 [offer] since the judgment was even on both sides and in fact the Defendant was marginally more successful than the Claimant. JM pointed out that because Lovells have taken on the case for Mr Lambrianou on a Pro Bono basis, there is no 'bill of costs' that the Claimants could pay a half of. He noted that this was manifestly unfair since it would only be Mr Lambrianou who had to pay any costs for this period. He argued that this situation puts someone who is being represented on a Pro Bono basis in a worse position than had they been fee paying clients. CL [that is a reference to the claimant's counsel] submitted that this was not the case and that if the judge were to take into consideration the fact that Mr Lambrianou was being represented in a Pro Bono basis, then his clients would be effectively penalised for paying their solicitors. The judge agreed that it was right that the Defendants should not be in a better position because of Pro Bono than had he remained a litigant in person and he agreed with CL that just because Mr Lambrianou has not had to pay, does not mean he should get any extra benefit in relation to costs. The judge also noted that Mr Lambrianou did not have any costs himself to pay in respect of his own solicitors and thus was in a better position than the Claimants who did have to pay half of their own solicitors' costs in any event.

JM pointed out that if a costs order was made on a 50:50 basis, the parties would not be on a level footing in accordance with the overriding objective of the CPR. The judge concluded however that the fairest way would be to judge the costs situation as if Mr Lambrianou was a litigant in person. The judge concluded that the order that he would have made had the Defendant been a litigant in person was that the costs be ordered prior to 15 March 2001 on a 50:50 basis. He stated that this would be of benefit for both parties as the Claimants would then not have to pay an otherwise large bill to the Defendants and yet the Defendants do not have to pay any costs to their own solicitor (or as a litigant in person, to himself)."

6. In his very helpful oral submissions this morning Mr Marshall in effect repeats the points which he made to the judge at the costs hearing. He submits that the order which the judge made operates in a way which is contrary to the overriding objective under the Civil Procedure Rules in that the parties are not treated as being on an equal footing. He submits that the fact that Mr Lambrianou will have no costs to off-set against his liability to pay half the claimants' costs means that the consequence of the judge's order is unfair and disproportionate, and he submits that the order effectively removes the level playing field which ought to exist for litigants both in relation to substantive issues and in relation to costs. On that basis he submits that the judge erred in principle in making the order he did, in the light of the fact that Mr Lambrianou was represented by lawyers on a pro bono basis.
7. It is of course the case that under Part 44 of the Civil Procedure Rules the court has a very wide discretion as to costs, and in making orders as to costs it must have regard to all the circumstances and also to the overriding objective. For my part, although the order which the judge made in relation to the costs of the action and counterclaim prior to 15 March 2001 is, in my experience, a somewhat unusual one, I am, despite Mr Marshall's helpful submissions, unable to see any basis for the submission that in making that order the judge erred in principle in any way. No doubt the judge might have said "no order as to costs." Indeed there are many other orders which he might have made in the circumstances. But in the exercise of his discretion he elected to take the course he did. As it seems to me, that was something which he was plainly entitled to do under the rules, and I cannot, for my part, see any arguable basis for the contention that in so doing he was acting in some way contrary to the overriding objective.
8. Accordingly I conclude, despite Mr Marshall's submissions, that the proposed appeal has no real chance of success.
9. Accordingly I dismiss the application.
(Application refused; no order as to costs).