England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/549.html
Cite as: [2011] EWCA Civ 549, [2012] 1 All ER (Comm) 268

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		Neutral Citation Number: [2011] EWCA Civ 549
		Case No: A3 2010 1024

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
MERCANTILE LIST
HH Judge Graham Jones (sitting as a Deputy High Court Judge)

Royal Courts of Justice
Strand, London, WC2A 2LL

12 May 2011

B e f o r e :

LORD JUSTICE RIX
LORD JUSTICE WILSON
and
LORD JUSTICE STANLEY BURNTON
____________________

Between:

	AXA SUNLIFE SERVICES PLC	Appellant
	-and-
	CAMPBELL MARTIN LTD BRENDON PARTINGTON GARY TIBOR HOSZNYAK	Respondents
	and between
	AXA SUNLIFE SERVICES PLC	Appellant
	- and -
	HARRY BENNETT & ASSOCIATES LTD HARRY EDWARD JOHN BENNETT	Respondents
	and between
	AXA SUNLIFE SERVICES PLC	Appellant
	- and -
	IDEAL FINANCIAL PLANNING LTD	Respondent
	and between
	AXA SUNLIFE SERVICES PLC	Appellant
	- and -
	KYMIN MORTGAGE SERVICES LTD RICHARD JOHN HILL SIMON JOHN ASTON	Respondents

____________________

Simon Picken QC and Susanne Muth instructed by Connell Associates appeared for the Appellant in each appeal.
Andrew Spink QC and John Virgo instructed by Farrells appeared for the Respondents Ideal Financial Planning Ltd, Harry Bennett And Associates Ltd, and Harry Edward John Bennett.
Gerald McMeel instructed by Everett, Tomlin, Lloyd & Pratt appeared on behalf of the Respondents Kymin Mortgage Services Ltd, Richard John Hill and Simon John Astern.
The Respondent Defendants Campbell Martin Ltd, Brendon Partington and Gary Tibor Hosznyak were not represented.
Hearing dates: 15 & 16 December 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Stanley Burnton:

This is the judgment of the Court on the costs issues that were left over after the judgment handed down on 18 February 2011.

Both the Appellant and the Respondents succeeded on some issues before us. More of the argument was spent on the question whether the entire agreement clause excluded misrepresentations, but for reasons given in paragraph 38 of my judgment the practical effect of the Respondents' success may be limited. The claims between the parties arise out of their commercial relations. This context is very different from the public law cases in which a substantial defendant may be required to bear all parties' costs, or be deprived of its own costs on the issues on which it succeeds. The fact that the Appellant is a larger organisation than the Respondents does not in our view affect the costs issues; nor does the fact that the Appellants' standard contract was in issue. We shall make no order for costs on the appeal.

On the basis of our judgment, the orders for costs made by HH Judge Graham Jones, requiring the Appellant to pay the Respondents' costs, cannot stand. The Appellant submits that the appropriate order would be one that results in it bearing 35 per cent of the Respondents' costs below. We accept that submission. The costs orders made by the judge will be set aside, and replaced by an order that the Appellant pay 35 per cent of the Respondents' costs of and occasioned by the trial of the preliminary issues before HH Judge Graham, to be determined by detailed assessment on the standard basis in default of agreement. If and to the extent that the Appellant has paid more than that percentage of the Respondents' costs, the Respondents must repay the excess to the Appellant within 14 days of that excess being quantified by agreement or assessment, or if any of the Respondents' costs have already been quantified, within 14 days of the date of this order.

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