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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE CHARLES HARRIS QC
(sitting as a deputy judge of the High Court))

		Royal Courts of Justice Strand London, WC2
		21st November 2006

1. SIR MARK POTTER, P: Following the hearing of the appeal in this case in which judgment was handed down on 19th July 2006, two matters of costs remain to be dealt with. First, the appropriate order for costs in respect of the appeal, to which I will shortly turn. Second, an issue in the appeal not dealt with at the main hearing and the subject of paragraphs 58 and 59 of the Notice of Appeal, which reads as follows:

"58. The judge discounted the costs payable by the Claimant to the Defendant by 30% on the premise that 30% of the time had been utilised to establish the negligence to which the Defendant had no arguable case. In fact the judge heard 5 witnesses three of which testified to the issue of negligence and facts alone. Therefore on the basis of the judge's preferred idea of proportionality [not agreed or accepted] he should have discounted the said costs by 3/5^ths or, if he preferred to count time actually spent, by a minimum of 50%.

59. In any event the Claimant was placed in an impossible position viz. his Art. 2 Human Rights. He had no way of determining the cause of his son's death except by bringing an action for damages."

2. As to paragraph 58, the judge gave no reasons for the amount of his deduction. However, no objection is taken on that account. No doubt that was because, in the argument before him, it was accepted or implicit that a broad percentage apportionment was open to him on the basis of the time which, having heard the case and been intimate with its progress, he considered had been taken up with the issue of negligence, as opposed to that of causation on which Mr Toth had failed.
3. It is suggested in the grounds of appeal that the judge should have given a discount of 60% by reference to the fact that, of the five witnesses heard, three testified to the issue of negligence and the facts alone. In my judgment, that is a wholly simplistic and plainly erroneous approach to assessment, which, as I have already indicated, fell sensibly to be dealt with on the basis of the time involved in preparation and presentation attributable to causation, as opposed to the issue of negligence.
4. Having regard to our knowledge of the case gained in the course of this appeal, I see no reason to doubt that (a) that is the approach which the judge took, and (b) that the discount figure selected was other than a broadly accurate assessment as between the two issues.
5. As to the argument based on Article 2 of the Convention, suffice it to say that at the time of the death of Mr Toth's son, namely October 1993, the Human Rights Act was not in force or indeed in draft, and no breach of Mr Toth's Convention rights is demonstrable. It is rightly not a point which has been pursued on Mr Toth's behalf by Mr Davey, who appears before us today.
6. Turning now to the costs of the appeal. Having succeeded in the appeal the subject of our judgment, Miss O'Rourke seeks an order for costs in favour of the respondent and I can see no ground on which in principle such an order can be refused.
7. For reasons which appear from Mr Toth's submissions and from his Statement of Facts when seeking to proceed for judicial review of the Legal Services Commission's initial failure or refusal to grant public funding for the appeal, Mr Toth was not legally aided between May 2003 (the date of the judgment under appeal) and 24th February 2006, or possibly some earlier date, according to the certificate issued by the Legal Services Commission when it changed its decision in terms acceptable to Mr Toth's solicitors. In these circumstances, Mr Toth is vulnerable to a straightforward order for the respondent's reasonable costs of the appeal under CPR 44.3(2)(a) until the date when he became legally aided. I can see no good reason why an order should not be made for such payment on the standard basis, such costs to be the subject of detailed assessment if not agreed.
8. Thereafter, as an unsuccessful appellant in receipt of legal aid, the position is governed by section 11 of the Access to Justice Act and CPR Part 44 Practice Direction paragraphs 21.16 and 22.1 to 22.9. In that respect it seems clear to me also that the respondent is entitled to an order for costs, and the appropriate order in that respect is (1) for the payment by the appellant of the respondent's costs of the appeal, to be assessed on the standard basis, as I have indicated; (2) that the full costs of the appeal be determined by a costs judge; (3) that the appellant as a party in receipt of services funded by the Legal Services Commission do pay to the appellant the amount (if any) determined by the costs judge in the High Court; (4) that it is just and equitable in the circumstances that, subject to the respondent complying with regulation 5(3)(b) of the Community Legal Service (Cost Protection) Regulations 2000, provision for payment of the respondent's costs from the date at which he became legally aided be made out of public funds; (5) there should be a detailed assessment of the appellant's costs in accordance with the Regulations already mentioned.
9. Finally, there is an application before us for leave to appeal to the House of Lords. I would refuse that application.
10. I should add that we did receive from Mr Davey, on the instructions of Mr Toth, an application for the adjournment of today's proceedings for the purpose of Mr Toth's seeking to obtain access to the tape recordings and/or transcripts of the proceedings before us in the Court of Appeal, with a view to making further application to us on lines previously argued on his behalf in correspondence to which we have referred in our judgment. In the that correspondence, it was suggested that, by reason of inadequate representation by Mr Pulman QC on behalf of Mr Toth, the matter should be restored before us for further hearing before judgment was given. No doubt Mr Toth is desirous of arguing that in some way our judgment, as now given, should be reopened.
11. We saw during the appeal a number of manifestations of Mr Toth's concern that, come what may, the matter should proceed, despite the dismissal of his claim in the lower court. He is convinced, and no doubt remains convinced, that the decision should have gone the other way. This has plainly affected his view very strongly. It has affected his view of the manner in which his appeal was presented and it has resulted in a determination that the matter should still not drop, but should be pursued to the end.
12. Whilst I have sympathy with Mr Toth that as a result of his intense and long -lasting grief and concern over the death of his son, he is reluctant to accept the ruling of the court, I consider that his submissions have been dealt with comprehensively in the judgment which we handed down on 19th July 2006 and that there is no likelihood whatever that as a result of his listening to tape recordings of the proceedings before us, (of which, for my part, I have the clearest recollection) he could or should bring about any change of view on the part of this court.
13. Accordingly, as I indicated in the course of argument to Mr Davey, his application for an adjournment of this hearing for the purpose of access to the tapes was refused.
14. LADY JUSTICE ARDEN: I agree. The appellant's application today for an adjournment was an application not so much to obtain the transcript, as to consider the transcripts if public funding could be obtained in order to see if the case could be strengthened for saying that the appellant's arguments were not properly put to this court. I agree with all my Lord has said about that, and would add that there would be no difficulty at all in obtaining transcripts, if funding were available, since the matter was in open court.
15. I agree with all my Lord has said. I wanted to add one further point on the earlier question of costs. Miss O'Rourke for the respondent has submitted that this court should form a view as to whether or not there was anything in the conduct of the case by the respondent which called for a discount. It was implicit in my agreement with my Lord's judgment that there is no such matter, so far as at least I am concerned.
16. LORD JUSTICE WALL: Apart from expressing my appreciation of the clear and moderate way the case has been advanced today by Mr Davey on Mr Toth's behalf, I have nothing to add and I agree with both judgments.

ORDER: (1) The appellant to pay the respondent's costs of the appeal to be assessed, in so far as he is not the beneficiary of public funds, on the standard basis; (2) the full costs of the appeal be determined by a costs judge; (3) the appellant, as a party in receipt of services funded by the Legal Services Commission, do pay to the appellant the amount (if any) determined by the costs judge in the High Court; (4) it is just and equitable in the circumstances that, subject to the respondent complying with regulation 5(3)(b) of the Community Legal Service (Cost Protection) Regulations 2000, provision for payment of the respondent's costs from the date at which he became legally aided be made out of public funds; (5) there should be a detailed assessment of the appellant's costs in accordance with Community Legal Service (Cost Protection) Regulations 2000; (6) the application for leave to appeal to the House of Lords is refused.

(Order not part of approved judgment)