England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
Chester District Registry
Mr Justice Wilson
CH02D02009

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/12/2004

Lord Justice Wall :

1. This is the judgment of the court on the question of costs, following our dismissal on 29 July 2004 of the appellant's application for permission to appeal three orders made by Wilson J in connection with the respondent's application for ancillary relief against the appellant in the divorce proceedings between them.
2. A draft of this judgment was sent to the parties for their comments on 4 October 2004, in which we (1) rejected the appellant's argument that there should be no order as to costs; and (2) assessed the amount he should pay at £15,185 plus VAT at £2,657, a total of £17,842.
3. By letter dated 6 October 2004, supplemented by further argument faxed to the court on 7 October, the appellant argued that there had been an element of double accounting in our calculation, and in particular that we had charged twice for a particular item amounting to £960. He also argued that he should not be charged for an item of £234 relating to transcribers' fees, as he had provided the transcript in question himself. The applicant's comments were forwarded to the respondent's solicitors, who replied on 27 October 2004.
4. This judgment now represents our concluded view on the matter.
5. On 29 July 2004, the respondent sought a summary assessment of her costs. However; (1) because her statement of costs for the hearings in this court on 9 June 2004 and 29 July 2004 had not been served on the appellant in advance of the latter hearing; (2) because the appellant was in person; and (3) because of the difficulty of re-constituting the court to hear an oral application relating to costs, we directed that the question of the respondent's costs be determined by written submissions. We received and considered the following: -

(1) The argument for the appellant received under cover of a letter dated 11 August 2004 to which various other letters were attached (a bundle totalling 18 pages);

(2) The response by Messrs Bakewells on behalf of the respondent to the appellant's case together with written representations dated 18 August 2004;

(3) A further response from the Appellant in reply dated 24 August, which was not covered by our order of 29 July, and to which Bakewells elected not to respond.

6. We reject the appellant's submission that there should be no order as to costs of the application. We are in no doubt that the appellant should pay the respondent's costs of the permission application from the point at which she was served with the order made by Wall LJ on 7 April 2004, which directed the listing of the permission application for oral hearing on notice to her. The simple fact of the matter is that the appellant's application for permission to appeal has been refused. The respondent has succeeded. She has been put to expense because the appellant raised allegations about her alleged lack of disclosure and sought to persuade this court that the judge had either been misled by the respondent, or had made his orders for financial provision and property adjustment on a false premise engineered by her lack of disclosure.
7. All the allegations which the appellant made, and which rendered it necessary for the permission application to be heard on notice to the respondent could and should have been raised at the trial before Wilson J. We bear in mind the judge's severe criticisms of the appellant's lack of disclosure, and the extensive delays before the proceedings for ancillary relief came to trial. This court is not the appropriate forum for the re-investigation of such issues. To obtain permission to appeal, the appellant had to show this court that an appeal against Wilson J's orders stood a reasonable prospect of success. He failed. Given the allegations made against the respondent, she was bound to answer them, and fully entitled to appear by solicitors and counsel. In this court, costs follow the event unless there is some exceptional reason rendering that course inappropriate. We see no such reason here.
8. The only question, therefore, is the amount of the respondent's costs. The respondent has produced three Schedules of Costs. The first, in the total sum of £19,180 inclusive of VAT has been prepared, it is said, on the basis of the appellant incurring a full liability to pay the respondent's costs on an indemnity basis. It is headed: "Statement of Costs for the hearings on 9^th June 2004 and 29^th July 2004. We will call this "A".
9. The second, in the sum of £15,756.70 inclusive of VAT has been prepared, it is said, on the basis of the respondent "complying with the court's order of 9^th June 2004 only", although it is headed: "Statement of Costs for the hearings on 9^th June 2004, complying with the order of 9^th June and attending on 29^th July". We will call this "B".
10. Also sent to the appellant, and referred to in his argument on costs sent under cover of the letter dated 11 August 2004 is a Statement of Costs incurred by the respondent for the first hearing on 9 June 2004 in the sum of £7,691.80 inclusive of VAT. We will call this "C".
11. Despite its description as relating to compliance with the court's order on 9^th June only, B includes costs incurred in preparing for the hearing on 9^th June. The difference between A and B lies in the amounts charged for attendances on the respondent namely 6 and a half hours, total £975 (A); 2 and a quarter hours, total £337.50 (B); the number of letters despatched and telephone calls made (£3,465 (A): £2,587.50 (B)); and the amount of work done on the preparation of documents (£3,351 (A): £1,950 (B)).
12. In the Schedule of costs we have identified as C, and which relates only to the hearing on 9^th June, no charge was made for any attendances on the respondent; letters and telephone calls totalled £1,275 and the work done on the documents totalled £960. The total for preparation thus amounted to £2,235.
13. There seem to us some discrepancies in the bills, although they appear to benefit the appellant. For example, the number of letters and extended telephone calls identified in C is 36 letters and 3.17 hours on extended telephone calls. In B (said to relate to post 9^th June, there are 51 letters, and 9 hours 45 minutes on extended calls. These do not match up with a total of 76 letters and 11 hours 29 minutes in extended telephone calls claimed in A.
14. We have no doubt that a great deal of work had to be done as a consequence of this court's order of 9^th June, and having heard the application on 29 July, we are sympathetic to the argument that the Respondent wished to avoid being "ambushed" on the latter hearing. We do not think that any of the charging rates identified in the three bills is unreasonable, and the appellant's criticisms of the bills seem to us to go to matters of detail.
15. In our draft judgment, we took the view that that the fairest way of dealing with the matter was to take the figure put forward in both A and B for attendance at the hearings, counsel's fees, travelling and other expenses (£8,284) and to add to it the figure for attendances on the respondent in (B), the figure for letters and phone calls in (A) and the work done on the documents in (B) + (C). The result, correcting one typographical error in our draft, was as follows: -

(1) The figure for attendances on the respondent (B) 337

(2) The figure for letters and phone calls (A) 3,465

(3) Work done on documents (B) + (C) 1,950 960

(4) Perusal (B) (same in (A)) 225

Total 6,937

Add

(5) Attendances at hearing + counsel (A) or (B) £8,248

Total £15,185

VAT at 17.5% 2,657

Total + VAT £17,842

16. We therefore assessed the respondent's costs of the application in the sum of £17,842.
17. In his letter of 6 October and in his subsequent argument submitted on 7 October, Mr. Challinor pointed out that the figure of £960 in paragraph 14(3) above is duplicated. In C, the figure for work done on documents for the hearing on 9 June is put in at £825 for preparation of the respondent's affidavit and the brief to counsel plus perusal in the sum of £135 a total of £960. In B, where the work done on documents is put in at £1950, the applicant argues that that figure plainly includes the £960 charged in C since the items of preparation identified in B include those charged in C.
18. The respondent's solicitors seek to counter this argument by pointing out that in the indemnity bill (A) the total charged for preparation of documents is £3,351, and whilst the appellant's mathematical point is strictly correct, it would be unjust to reduce the figure which we have allowed for the preparation of documents (£1,950 + 960 = £2,910) to £1,950, when the true figures payable by the respondent (A) is £3,351. Mr. Astle points out that we were sympathetic to the respondent's wish not to be ambushed; that the assessment of costs is not an exact science and that if the court is minded to reduce the figure for the preparation of documents further, it should be by a percentage.
19. We accept the appellant's argument that there is double accounting in our previous calculation, and whilst we are sympathetic to Mr. Astle's arguments as set out in paragraph 17 above, we have come to the conclusion that the only fair way to deal with the matter is to correct the error, and reduce our previous assessment by £960 + VAT (that is £960 + 168 = £1,128). We therefore assess the costs of the application for permission to appeal in the sum of £16,714 inclusive of VAT, and it is this sum which the applicant must pay the respondent.
20. On the question of the transcript, we accept what Mr. Astle says in paragraph 2 of his response dated 27 October and decline to deduct the sum of £234 relating to it.
21. We also agree with the respondent that the proper course is for this sum to be deducted by her from the lump sum payable to the appellant pursuant to Wilson J's order. This is a sum to which the respondent is now entitled, and the mechanism of deduction provides the swiftest and most efficient means of payment.
22. These, accordingly, are our orders.