England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WREXHAM COUNTY COURT
(District Judge Ewing)

		Royal Courts of Justice Strand London WC2 Thursday, 7th February 2002

Thursday 7th February 2002

1. LORD JUSTICE BROOKE: This is an application for permission to appeal against the order of District Judge Ewing in relation to costs in this matter on 31st May 2001.
2. Putting the matter briefly, there was a dispute between the parties in relation, first, to a right of way across the defendant's land and, second, in relation to a right to park, which the claimant had asserted in correspondence and which the defendants raised as an issue in this action in their defence to the counterclaim.
3. The parties did their best to reach a settlement of the action short of a contest in court, and we have seen Part 36 offers which were made in that endeavour by both sides. Eventually, on 1st May 2001 the claimant's side threw their hand in on the right to park, which they had by now asserted in their statement of case. On the other hand, there remained an issue in relation to the right of way. The claimant was asserting that she should have a right of way without any limit to the number of vehicles that might use it. The defendant, at most, was willing to concede a right of way limited to one vehicle.
4. The parties were unable to reach agreement until the day of the trial. It was fixed for a two and a half day hearing before the District Judge in the multi-track. They were able to reach an agreement at the hearing, and the issue of costs was held over to the following day because that was the one surviving issue on which the parties were not able to reach agreement.
5. We have had the opportunity of reading the transcript of the District Judge's judgment in relation to costs. It was being suggested that he should make a separate order for costs, one in favour of the claimant in relation to the right of way issue, which continued right up to the day of trial, and one in favour of the defendants in relation to the right to park issue, and leave it to the costs officer to sort out what costs should be attributed to each issue. The District Judge, no doubt with experience of the problems of assessing costs, considered that it would involve a very considerable complexity in trying to assess costs in that way. He said that the claimant was legally aided, that there were lengthy negotiations involving the parking issue and the right of way issue, and it was only reduced to an issue relating to the right of way at a late stage. He also took account of the fact that after 18th May, when in his judgment the dispute between the parties on the right of way issue really crystallised, the claimants insisting that there should not be a limited right of way, the defendants, nevertheless, gained some benefit from the discussions leading up to the consent order.
6. Mr Bickford-Smith submits that the District Judge was arguably clearly wrong in the order he made which, in effect, left the parties to bear their own costs, despite the fact that his client had had to go all the way up to the court door and it was only at the court door that she achieved what she had brought the action for.
7. In my judgment, there is an argument, which was set out concisely in writing and has been repeated in front of us, which raises a real prospect of success on this appeal. Accordingly we should grant permission to appeal.
8. I very much hope that it may be possible for the parties to reach agreement through some form of alternative dispute resolution or mediation. The Court of Appeal office has an ADR scheme, which I hope both parties may be inclined to take advantage of. The amount of costs in issue at the moment is comparatively small so far as the general run of Court of Appeal litigation is concerned, and, if one had to contemplate a contested hearing in the Court of Appeal on the costs issue, the amount would be rapidly becoming disproportionate. However that may be, and I hope that my comments may also be drawn to the attention of the other side, who have sent us helpful written submissions and make it clear that they did not wish to incur the costs of appearing here to support their written submissions, the order that I would make today is to grant permission to appeal.
9. LORD JUSTICE SEDLEY: I too think this is a proper case for permission to appeal, notwithstanding the skeleton argument of the intended respondents which I have read. It does not seem to me anything like a conclusive answer at this stage to the applicant's case.
Order: Application allowed. Costs of the application to be costs in the appeal. Public funding assessment of the Applicant's costs. Time estimate half a day. Case to be listed before a three court judge, one of whom may be a High Court Judge.