England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(His Honour Judge Tyzack)

		Royal Courts of Justice Strand London WC2 12th November 2001

12th November 2001

1. LORD JUSTICE DYSON: Mr Godolphin is the defendant in mortgage possession proceedings which were brought by the Alliance and Leicester plc. That action was heard at the Truro County Court on 24th and 25th April 2001. Judgment was given in favour of the Alliance and Leicester. Mr Godolphin was ordered to give possession and to pay some £95,000-odd by way of arrears of capital and interest.
2. The principal complaint of Mr Godolphin relates to the order for costs that was made by the judge. After His Honour Judge Tyzack QC had given judgment in favour of the Alliance and Leicester, the County Court drew up the order and dated it 25th April. The order stated that there would be "no order as to costs".
3. On 23rd May Miss Muir, counsel for the Alliance and Leicester, wrote to the court asking for an amendment to the order under the slip rule. She wrote:

"On the question of costs I indicated to the court that the claimant was not seeking a specific order in relation to costs as these would be added to the security under the terms of the mortgage. At no time did HHJ Tyzack QC indicate that he proposed to make any other order in relation to costs or to deprive my clients of their contractual right to their costs. In the light of the above, it was my understanding, and I believe that of the court, that the usual order would be made, i.e. the final would either be silent on the question of costs or recite that there be, 'no order for costs save that the costs be added to the security'."

4. The transcript of proceedings of 25th April does show at page 42 that Miss Muir said:

"No order for costs save that they be added to the security."

5. The judge responded:

"Mr Godolphin, is there anything else you want to say now that Miss Muir has addressed me?"

6. Continuing with the history of what happened, after the conclusion of the hearing Mr Godolphin wrote two letters to the court. First on 5th June, and before the order was amended as indeed it was, Mr Godolphin wrote a long letter indicating why in his submission the order should not be amended. He argued that the order reflected what the judge had said and that therefore the application was essentially that:

"The order should say something different from what the judge actually said."

7. Nevertheless the order was amended to read:

"No order for costs save that the costs be added to the security."

8. Mr Godolphin's second letter is dated 7th July. In this letter he referred to an approved transcript of proceedings. He pointed out that the judge had said:

"I make no order for costs."

9. He complains that Miss Muir waited for almost a month before raising any objections to the form of order. He contended that since the order in its original form embodied exactly what the judge had said, the judge had no power to vary it as he had done. Accordingly, Mr Godolphin requested that the order be reamended so as to read "no order for costs".
10. On 26th July a Mr Dalton wrote to Mr Godolphin on behalf of the court. He said that Mr Godolphin's letter of 7th July had been referred to the judge who had made the following statement in response:

"What Mr Godolphin overlooks in his letter is that it was my clear recollection that Miss Muir was seeking the 'usual order' in relation to costs which in the context of a case of this sort means that the claimant's costs should be added to the security. That is the order I intended to make hence my agreement to amend the order under the slip rule. I am also quite sure that Mr Godolphin understood this. Miss Muir had, as I recall, dealt with the question of costs in her argument before me and had asked that her costs be added to the security that was why I said I was making no order. What I should have said was I was making no order because the claimant's costs were to be added to the security."

11. In advancing his application for permission to appeal Mr Godolphin first needs an extension of time. The date of the original order was 25th April and he did not file his notice until 16th August. There is nothing to suggest that Mr Godolphin's claim that the amendment to the order was made on 4th June is otherwise than correct. Moreover, he did not obtain a transcript of the proceedings for some time. In these circumstances, and having regard to the fact that he is a litigant in person, I am willing to grant him an extension of time for the purpose of making this application.
12. In his unamended skeleton argument his ground of appeal focuses on the submission that the judge was in error in altering the order as to costs. His submission in a word is that once the order had been perfected the judge was functus officio. The judge purported to alter the order under CPR 40.12 which provides that a court:

"... may at any time correct an accidental slip or omission in a judgment or order."

13. As to the functus officio point, it seems to me that the judge was clearly entitled to amend the order pursuant to CPR 40.12 in the manner that he did on the grounds, as he said, that the order did not accurately reflect the order that he had made. It seems to me that the judge was not varying his order after it had been perfected, but rather was merely correcting an error, in as much as it did not accurately reflect the order that he intended to make.
14. Mr Godolphin also complains that the conduct of both himself and the Alliance and Leicester reflected a mutual understanding that the judge ordered that there be no order as to costs. It seems to me that the essential point is the one already made, namely that the judge, having heard a submission in relation to costs, intended to make the order that has now been made and that by mistake the order drawn up by the court failed to reflect that fact.
15. Mr Godolphin has before me this afternoon raised the complaint that he was not invited to make any submission as to costs. But it is clear from the extract from the transcript at page 42 on 25th April 2001, to which I have already referred, that he was indeed given an opportunity immediately after a submission had been made in relation to costs to say whatever he wished to say about costs. I find no substance in that point.
16. In short, it seems to me, although there was plainly an unfortunate slip in this case, the judge was perfectly entitled to correct the order as he did. That is the very reason why the rules provide for courts to correct slips when, as inevitably occurs, they take place.
17. I would therefore not permit Mr Godolphin to appeal on the main point that he seeks to advance which relates to the question of costs.
18. However, by his amended skeleton argument he seeks to advance a different ground of appeal. That concerns the way in which the judge dealt with accounts numbered 3, 5 and 6. One of the points raised by Mr Godolphin was that the default notices relevant to those three accounts were invalid. It is clear from the transcript of the proceedings of 24th April, page 13, that the Alliance and Leicester decided not to pursue its claims in relation to those three accounts. As counsel said:

"We are prepared to accept that those defaults notice are defective for the purpose of these proceedings. Sorry, I should reword that, that we are not proceeding with it. We don't accept there are defects but we are not proceeding on that basis."

19. Mr Godolphin says in his amended skeleton that nevertheless some parts of the £95,000-odd for which judgment was given against him relates to one or more of those three accounts. It is clear that the judge was aware of the fact that the claim in respect of those three accounts was not being pursued. Indeed, as is stated at paragraph 9 on page 8 of the amended skeleton argument, the judge refused to allow Mr Godolphin to deal with his tenth, eleventh and twelfth main grounds because, as the judge said, those grounds were not being litigated:

"I have already ruled that. I am not going back on it."

20. It is not clear to me what ruling he was there referring to, but as I have already indicated the claim was not being pursued in relation to those accounts.
21. At page 9, paragraph 20, of the amended skeleton Mr Godolphin says that the figure of £95,000-odd for which judgment was given had been arrived at by deducting £28,000 from the total sum said to be outstanding of £123,000-odd. As he says at subparagraph (21) on page 10, the £28,000 represented the capital sum originally lent on the three accounts, numbers 3, 5 and 6.
22. Mr Godolphin submits, however, that the £95,000 includes some interest on the capital originally lent in respect of those three accounts, and, if I understood him correctly, some arrears of capital, although I confess I have had some difficulty in understanding to what that refers. Bearing in mind that he is a litigant in person, I have not thought it right to shut him out from seeking to show that some part of the £95,000 relates to an aspect of the case which was not pursued by the Alliance and Leicester.
23. On the material before me, however, it is quite impossible to see whether the Alliance and Leicester have a knock-out answer to this latest submission. In these circumstances, therefore, I propose to adjourn this aspect of the application to enable the Alliance and Leicester to make submissions in response to this point, so that when the matter comes back before me, as I direct that it should, I will have the benefit of submissions on behalf of the Alliance and Leicester before I make a final ruling on this aspect of the application.
24. What I propose to direct, therefore, is that this judgment be transcribed, a copy of it be sent to those representing the Alliance and Leicester, that they be given 14 days from the date on which the judgment is sent to them to make written comments on this limited aspect of the matter, and that the adjourned hearing should then be restored before me for Mr Godolphin to make whatever further submissions he wishes to make on this narrow point. If the Alliance and Leicester wish to be represented on that occasion, then they may do so.
ORDER: Appeal re costs in the lower dismissed. Appeal on the interest costs adjourned to allow representations from the Alliance and Leicester.