England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - DIVISIONAL COURT)
(Mr Justice Moses)
CO/1760/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th February 2005

Lord Justice Neuberger:

1. We gave the initial ruling on costs, to the effect that the appellants should have all their costs, with the exception of the hearing of 9th March 2004 in respect of which their should be no order. That proposal was withdrawn, when we appreciated that the respondent wished to make submissions on the issue of costs.
2. In relation to the issue of costs we have now received submissions from the respondent dated 30th November, and submissions in reply on behalf of the appellants dated 19th December 2004.
3. Having considered those submissions, we have reached the conclusion that:

i) The ruling that there should be no order for costs in relation to the hearing of 9th March 2004 should stand;

ii) So far as the costs otherwise relating to the appeal, and the costs below, are concerned, the respondent should pay two-thirds of the appellants' costs.

4. We do not propose to give detailed reasons for this conclusion, because the parties have so fully set out their respective cases in their written submissions, for which we are grateful.
5. In summary, the reasons we have reached this conclusion are as follows:

a) The appellants had a justified complaint about the order made by the respondent, which meant they had to come to court, and appeal to the Court of Appeal, in order to vindicate;

b) Accordingly, in the absence of good reason to the contrary, the appellants should have their costs here and below, and it would require exceptional circumstances before they could be deprived of all their costs;

c) However, it can fairly be said the appellants did raise arguments, both at first instance and on appeal, which required evidence and took up court time, and it can also be said that the appellants' case changed somewhat between the issue of proceedings and the first instance hearing, and between the first instance hearing and the appeal;

d) Where, as in the present case, there is ultimately only one issue, the fact that the successful party changes his case somewhat or raises arguments that do not succeed, does not necessarily mean that he will be deprived of any of his costs. However, in this case some deprivation is appropriate, not least because a significant, but not enormous, amount of costs will have been effectively wasted by the appellant and spent by the respondent as a result of the changes and unsuccessful arguments.

e) However, it appears to us that the respondent's written submissions overstate the extent to which the appellants' case changed. Many of the changes have been the sort of refinements or variations which often occur in litigation of this nature.

f) In all the circumstances, the appellants therefore ought to have their costs, but there should be a significant, but not enormous deduction, namely of a third, to reflect the points made on behalf of the respondent.

ORDER: The appellant (that is Mr and Mrs Richards) to receive two-thirds of their costs here below and from Pembrokeshire County Council.

(order does not form part of approved judgment)