England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice The Strand London Friday 26 May 2002

Friday 25 April 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal a decision on costs made by His Honour Judge Rich QC following a trial held at the Central London County Court on 7 and 8 January 2002. The trial concerned a number of related issues as to the rights of the claimants, who were the owners of 37 Kilburn Lane, over land owned by the second defendant, Nomad Tribe Ltd, comprising commercial premises at 35B Kilburn Lane together with a private mews road.
2. `The claimants sought a number of reliefs: (1) a declaration that they had a vehicular right of way over the mews; (2) a declaration that they had a right to park one private car on the mews; (3) an order seeking the removal of gates which allegedly obstructed the right of way claimed; (4) an order that the present applicant remove the gas meter placed on the claimants' wall; and (5) damages for obstruction of the claimants' right of way. It should be added that, while it was a vehicular right of way they were seeking to their premises, it was also disputed that they had a pedestrian right of way, which in the event was found to exist.
3. The judge ordered that the defendants to the action, the present applicants, pay 75 per cent of the costs of the action. It is submitted that that order is so contrary to a just result that the judge's discretion should be the subject of review at a full hearing in this court.
4. Miss Olley has helpfully summarised, both in a skeleton argument and orally, the degree of success on the various issues. As to a right of way, a vehicular right of way was claimed to exist. We have been told that on the second day of the trial a pedestrian right of way was admitted. The defendants succeeded on the right to park issue. The judge held that there was no such right. The judge did not express a view about the gates since they had been removed in August 2000; that is, long before the hearing although eight months after the proceedings had been commenced. The claimants were successful as to the removal of the gas meter. The applicants were successful in resisting a claim for damages.
5. Miss Olley refers to CPR 44.3(4)(b) which provides that in deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including whether a party has succeeded in part of his case even if he has not been wholly successful.
6. The essence of the applicant's case is stated at paragraph 13 of the skeleton argument, where the judge's approach is criticised:

"The learned judge appears to have treated the Claimants as the 'winners' of the litigation (presumably because they succeeded in establishing a right of way the Defendants had denied) rather than considering the outcome of all the issues in the case."

7. Miss Olley in her opening submission adopted a similar approach by referring to the outcome of the case as "a draw". That, in my judgment, is not an appropriate approach in that it leaves out what on the question of costs is an important consideration, namely that these claimants had to go to court to establish anything at all. They had to go to establish their pedestrian right of way, they had to go to establish their vehicular right of way, and they had to go to have the meter removed from their wall.
8. The judge's discretion is a broad one and Miss Olley realistically recognises that this court does not routinely interfere. It does not interfere on the basis that a different judge might have come to a different conclusion in the exercise of his discretion. What the court is considering is whether there is an error of principle or whether the exercise of discretion is plainly wrong, having regard to the material before the judge. We do not have the transcript of the judge's decision. Miss Olley was not present at the hearing but she understands that no detailed reasons were given.
9. In my judgment it is not arguable that the judge has erred in a way which would justify this court in granting permission to appeal or justify the court in interfering with his decision at a full hearing. The judge is plainly in the best position to assess the situation. He is made aware of the history of the litigation, the stage at which steps were taken, the stage at which concessions were made, the amount of time spent on the various issues and the outcome of the case as well as the outcome on particular issues. Clearly the construction of clause 7 was a very important feature of this case and upon that construction the claimants achieved a degree of success which in my judgment was substantial. They had to come to court to achieve it and costs incurred in doing that formed a substantial part of the costs of the case.
10. Miss Olley makes the point that, because there was other pedestrian access to the premises, the valuable right was the right to park, and on that issue the claimants failed. I can readily accept that, in terms of any valuation of the property, that was a very important issue. In money terms, in that sense, it was perhaps the most important issue and one on which the defendants succeeded. But that, in my judgment, is not necessarily an important consideration when it comes to assessing costs. Whether the outcome in financial terms on one issue is vital does not mean that in terms of costs incurred, and approach by the parties to the litigation, it is a factor which must have a large influence in costs. I see no reason to disturb the judge's exercise of his discretion in this case, having regard to the issues and the degree of the success which the claimants had.
11. I would refuse this application.
12. LORD JUSTICE CLARKE: I agree.
ORDER: Application refused.