England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Langan QC,
sitting as a Judge of the High Court)

		The Royal Courts of Justice The Strand London WC2A Monday 22 January 2001

Monday 22 January 2001

1. LORD JUSTICE RIX: Mrs Kattos had a claim against her solicitors, Prettys, in negligence. An issue of limitation arose as to, at any rate, parts of her claim. That issue was resolved in the first instance in her favour by the order of Deputy District Judge Watkins on 29 July 1999. In the ordinary course, she obtained the costs of that hearing.
2. On appeal, His Honour Judge Langan QC on 4 October 1999 decided that issue in favour of the defendants and overturned the decision of the deputy district judge. And in the ordinary way, the defendants obtained the costs in respect of both hearings.
3. There was then an appeal to this court. On the eve of the hearing, that appeal and, indeed, the whole action were settled by a compromise, under which the claimant was to receive £35,000 and her costs. A minute of the compromise, dated 17 April 2000, was drawn up and signed by solicitors for both parties. The minute read as follows:

"The parties having agreed that the Defendants will pay to the Claimant in settlement of her claim against the Defendants the sum of £35,000.00 and her costs on the standard basis to be the subject of a detailed assessment if not agreed

We the solicitors for the Claimant (who is sui juris) and for the Defendants hereby request that an order be made that:

1. This appeal be dismissed by consent;

2. The Defendants do pay the Claimant's costs of the action and of this appeal on the standard basis to be the subject of a detailed assessment if not agreed;

3. The Claimant's costs be the subject of a detailed assessment under the Civil Legal Aid (General) Regulations 1989."

4. An order was subsequently made in those terms on 10 May 2000, save that in error the first paragraph of the order included the words "for permission to appeal" after the words "the appellants appeal". That error was amended under the slip rule on 16 May 2000.
5. Immediately after the making of the compromise and the drawing up of the minute of order of 17 April 2000 - the very next day, or perhaps the day after - a dispute broke out in correspondence between solicitors as to the effect of the compromise upon the order below of His Honour Judge Langan, which gave to the defendants the costs of the hearings on the limitation issue up to that point. Despite that dispute, the order was subsequently drawn up on 10 May 2000, subject to the slip which I have mentioned, in the words of the minuted agreement.
6. There the matter rested for some time, until in due course the question of the detailed assessment of the claimant's costs came up for hearing. By an order made on 8 November 2000 and drawn on 20 November 2000, District Judge Temple, sitting at Cambridge County Court, declared that the order of this court, the Court of Appeal, sealed on 10 May 2000:

". . . does not entitle the Claimant to recover the costs of the hearing before Deputy District Judge Watkins on the 29th May 1999 or the hearing before His Honour Judge Langan QC on the 4th October 1999."

7. That order gave rise to Mrs Kattos' present application to the Court of Appeal for a declaration that the Court of Appeal's order entitled the claimant to recover the disputed costs of the two lower hearings; alternatively, for an order under the slip rule, now CPR Part 40 rule 40.12, to amend the order to refer to:

". . . costs 'here or below' or otherwise as may be appropriate to reflect the intention of the parties. . . ".

8. The matter came on paper before Latham LJ, who considered that the application under the slip rule should go forward to an oral hearing. But in his written remarks he referred to the view that the Court of Appeal had no jurisdiction to deal with the application for a declaration. The matter has therefore come before this court on an application under the slip rule.
9. The matter is, of course, complicated by the fact that the issue has already come before District Judge Temple and he has made his own order declaring the meaning of those words. In my judgment, however, this court on this application has jurisdiction to construe its own order. Indeed, it is obliged to do so for the purpose of the application under the slip rule. It is hardly in a position to make a decision under the slip rule without a view as to what the order means.
10. This court, therefore, has to construe the words "The Respondent do pay the Appellant costs of the action and the costs of this appeal". Mr Post, on behalf of the defendants, has drawn the court's attention to the definition of certain cost terms in the Civil Procedure Rules in the Practice Direction for Part 44 at paragraph 8.5 and, in particular, to the definition of the terms "Costs" and "Costs in any event" as being:

"The party in whose favour the order is made is entitled to the costs in respect of the part of the proceedings to which the order relates, whatever other costs orders are made in the proceedings",

11. and also to the meaning of "costs here and below". The table of definitions is expressly stated in paragraph 8.5 as being "not an exhaustive list of the orders which the court may make". The expression "costs of the action" found in the order is not defined in that table. Mr Post submits that Mrs Kattos' appeal having been dismissed, and the order below therefore standing, the words "costs of the action" must be construed to mean "costs of the action outside the costs dealt with by the order of Judge Langan".
12. In my view, however, the matter is not as straightforward as that. If the order of Judge Langan stood unaffected by the order of the Court of Appeal, it would follow that the particulars of claim in dispute would be struck out and barred, whereas the parties were prepared to compromise the action as a whole and to enter into orders as to costs irrespective of that order. The effect is, in my judgment, that Judge Langan's order is not unaffected by the order of the superior court if the order cannot, to the extent of the order of the superior court, stand with it. In my judgment, because of the expression that the (Prettys) respondent pay to the appellant (Mrs Kattos) "costs of the action and the costs of this appeal" it is impossible to extract from the words "costs of the action", which are unlimited, the costs dealt with in the order of Judge Langan below.
13. It is not necessary to decide whether an order of a court of co-extensive jurisdiction would have the same meaning. Such an order would not be dealing with the costs of an appeal. In my judgment, where the words "costs of the action" are dealt with without limitation and stand alongside "the costs of the appeal", all of which costs are to be awarded in the same direction, it is an unlikely and, in my judgment, wrong construction of those words to hold that they do not impinge upon the costs order below of His Honour Judge Langan. In my judgment, therefore, these words bear a meaning even wider than the words "here and below" because they embrace all the costs of the action and of the appeal. There is no need therefore to amend this order under the slip rule, and we have not heard Mr Spon-Smith on behalf of Mrs Kattos develop his submissions in that respect.
14. I should emphasise that this application is in no way an appeal from District Judge Temple. Any appeal from District Judge Temple would have to go to the High Court. Nevertheless, I have said what I have said in this judgment in an attempt to prevent any unnecessary escalation of costs in this matter, bearing in mind as I do not only my view as to the meaning of the order of this court, but also the court's concern to minimise cost and delay and to deal with cases justly.
15. In the circumstances, I trust that this whole question can be dealt with in the light of this judgment without further waste of expenditure or further delay.
16. MR JUSTICE HOLMAN: I agree.
ORDER: In the court's opinion, for the reasons set out in the judgment, there was no need to amend the order under Part 40.12. The Applicant to have her costs of the application. (Order not part of approved judgment)