England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight)

		Royal Courts of Justice Strand London WC2
		Friday 27th April 2001

1. LORD JUSTICE MANCE:On 22nd September 2000 Miss Recorder Worrall QC heard an application by the claimants issued as late as Monday 18th September 2000 for the adjournment of a trial date then listed for 25th September 2000. The application was founded on the applicant second claimant's medical problems. These had lead to him having tests and being ready for an operation for cancer. Happily, the tests proved clear, but he only received notice of that on 15th September. The application was made, I understand, on the basis that he had not had time to prepare for the trial. It was, in the event (at least from 21st September), opposed on the grounds that one of the respondents, Rebecca Penrose, was herself suffering from leukaemia and that it would be a real hardship for her if the trial went off at the last minute due to a problem which must have been evident on the claimants' side for months.
2. The application was listed (probably optimistically) for only 15 minutes, but it seems to have extended over the whole day, with substantial interludes while the court dealt with other matters on its schedule and sought to ascertain what other dates might be available for trial. At the end of the day, the application was allowed, but only on terms that the costs should be borne by the claimants. That, as I understand it and as Mr Mahmood, the second applicant, has accepted before me, is not in principle in issue. What is in issue is the amount of the costs and how they were fixed.
3. Miss Recorder Worrall was given three sheets, which do appear to me (as they evidently have to others) to be somewhat obscure. They are pages 39, 40 and 41 in the bundle. In broad terms, they are as follows. Page 39 is an estimate of the actual costs of the hearing on 22nd September, including an estimated hearing length of only some 20 minutes, and a total, including VAT, of £1,169.13. Then on page 40 there are the costs of the trial bundle at £1,533.38, which were evidently regarded as costs thrown away, although that may itself be slightly puzzling, but that aspect of the order is not formally challenged. Then on pages 40 to 41 are pre-trial costs of £1,584.72, which were no doubt viewed as abortive on the basis that, at least in principle, they would, to a greater or lesser extent, have to be repeated before any adjourned trial.
4. Miss Recorder Worrall, in the event, ordered the claimants to pay the third item (that is, the abortive pre-trial costs of £1,584.72) outright, and no application was made to appeal that order. Indeed, those costs were, I am told by Mr Mahmood, paid immediately, long before the trial, which in fact took place in December 2000. So they are water under the bridge and have been settled. What remained was defined in Miss Recorder Worrall's order as being:

"... the balance of the wasted costs i.e. the costs of the trial bundle paid by the Defendant in default of Claimant, and the costs of today's application which are to be considered by the trial Judge".

5. So she adjourned consideration of those costs to the trial judge.
6. The matter came on for trial on 4th December 2000 and extended over a number of days. The trial was before His Honour Judge Knight QC. He handed down judgment in writing on 19th December, and in that judgment he recounted (at page 6, paragraph 8) as follows:

"At the end of the third day, and after completion of the Claimants' case, and in the middle of the evidence of Professor Penrose, against my advice and warning that the Defendants' claim would proceed in their absence, the Claimants withdrew. I do not propose to comment on the reasons for this action. It does not, of course, affect the counterclaim, which all the defendants pursue, and upon which they are entitled to a decision."

7. The claim therefore failed and the judge went on to find in the defendants' favour on the counterclaim.
8. When he handed down judgment on 19th December he was asked to deal with, and did deal with, costs. Not surprisingly, he ordered that the claimants pay the defendants' costs of the action, subject to detailed assessment. He also dealt with the costs which had been reserved to him, defined by Miss Recorder Worrall as being "the costs of the trial bundle paid by the Defendant in default of Claimant" and the costs of the application on 22nd September. Had the costs of the trial bundle not been reserved to him, they would no doubt have constituted part of the costs of the action which the claimants would have had to have paid under the first part of his costs order. In the event, in respect of the costs reserved to him relating to the trial bundle and the application on 22nd September, he assessed a figure of £4,623.63 and ordered that to be paid by the claimants to the defendants.
9. I have read and been referred to the transcript of 19th December when those costs were discussed in the claimants' absence since, as they have accepted before me through Mr Mahmood, they chose not to appear. The transcript suggests that the £4,623.63 was arrived at by counsel adding up sums on certain bills which were put before His Honour Judge Knight. At the moment I am entirely unable to understand the mathematics. In part, this may be because I do not have the relevant bills. It is apparent from the foot of page 5 of the transcript that at any rate the first page, page 39 in my bundle, which was of course an estimated bill, was updated to take into account the actual length of the hearing on 22nd September. That figure, which was originally £1,169.13, appears to have become £1,797. On top of that, one has the costs of the trial bundle put at £1,533.38. Then, as Ms Stevens-Hoare, representing the defendants, correctly said, the balance of pages 40 and 41 were dealt with by the recorder's order for payment of £1,584.72. So, on the documents that I have, at the most one would have a figure of £1,797 plus £1,533.38, which would appear to make a total of £3,330.38.
10. Reading the transcript and the documents before me, therefore, I am unable to come to a figure of £4,623.63 or anything like it. It seems to me, as I have said to Mr and Mrs Mahmood, that the right course in those circumstances is to seek some further information as to what happened on 19th December before attempting to reach any decision either way on the present application. What I propose is that the Court Office should write to the respondents and their counsel and give them the opportunity, within 14 days of receipt of that letter, which will enclose a copy of this judgment, to comment on the points that I have made and to explain how it is said that the figure of £4,623.63 was made up and to produce any relevant further documents. Following receipt of their comments, a copy of which should be sent to the claimants, the claimants should have the opportunity of responding within a further 14 days, after which I may dispose of the matter on paper. If I allow an appeal, that will of course go ahead. If I refuse permission for an appeal, the applicants will have a chance to relist the matter for a further oral hearing. Alternatively, I may simply think it best that the matter is relisted straightaway for a further oral hearing.
11. I should, however, say that Mr and Mrs Mahmood have made a large number of other allegations about the unreasonableness of the costs awarded. It is fair to say that the judge does not seem to have reduced any figure, but to have thought every figure put before him to have been reasonable. That may well, of course, be justified. But, until one has seen whatever documents it was he had before him, it does not seem to me that one can take any sensible view on that at all. Mr and Mrs Mahmood take the broad view that the judge was wrong summarily to assess the costs and should have ordered a detailed assessment. They assert, for reasons which presently escape me, that that has something to do with the European Convention on Human Rights. However, I think it necessary to reserve any conclusion on this aspect also until one has actually seen the figures which the judge did accept. It may indeed be that there is a fundamental mathematical error in the judge's approach, in which case no doubt permission to appeal will be eminently justified. On the other hand, it may be that he had figures before him which did justify the sum at which he arrived, in which case Mr and Mrs Mahmood may have a more uphill task in seeking to challenge the reasonableness of those figures in any way which would justify permission to appeal; but they will have the opportunity of doing so if the figures do exist, in the light of the order which I have already proposed.
12. I should add that they had also, on the face of it, had several months to consider the costs which had been claimed before Miss Recorder Worrall by pages 39, 40 and 41, and it was their choice not to attend when judgment was given, so that they cannot blame the judge if he did not take into account any allegations they wished to make about particular matters such as the conduct of the application on 22nd September. I should say in that connection that they have made a large number of allegations on paper, but not orally before me, about the alleged unreasonableness of the conduct of the whole action. But it does seem to me that allegations about alleged unreasonableness in the conduct of the action prior to 22nd September have nothing to do with the matter, and that allegations relating to the trial, where Mr and Mrs Mahmood evidently seek to complain in some other way about the conduct of the trial judge, are also irrelevant. What one is concerned with is the reasonableness of the costs incurred in respect of the application on 22nd September.
13. For those reasons this application will be stood over pending the further comments which I have invited.
Order:application for permission to appeal adjourned pending further enquiries.