ON APPEAL FROM HUDDERSFIELD COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE TOMLINSON
| Naseem t/a SH Builders and Contractors
|- and -
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Mr Ian Pennock (instructed by Stachiw Bashir Green Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Jackson:
Part 1 Introduction,
Part 2 The Facts,
Part 3 The Present Proceedings,This is an appeal against a costs order made at the conclusion of litigation in the Huddersfield County Court concerning a building dispute. The action was tried before Mr Recorder Phillips, to whom I shall refer as "the judge". The proceedings were fraught with complexity and confusion, which the judge dealt with carefully through a difficult trial. We have been assisted this morning by counsel who have presented their submissions concerning a confused and complex case with considerable economy.
The claimant is a building contractor. The defendant is the owner of a shop with associated residential accommodation at 52 Dryclough Road, Crosland Moor, Huddersfield ("the premises").
By a claim form issued in the Huddersfield County Court on 20 May 2008 the claimant claimed a sum of £22,214.73 against the defendant as the outstanding balance due in respect of works carried out. The defendant served a very brief defence which reads as follows:
"I had already paid over even he did not give receipt by cheque and cash 2/3/07."
"Reroofing the main front elevation of the existing roof elevation at an agreed price of £3000."
"On the question of costs, I have to say that this was one of the worst prepared cases that I have seen. I was presented with 4 lever arch files. The first file was so badly copied as to be illegible, and had to be changed. The fourth file was never opened once during the trial. Less than half a dozen pages from the third file were used. The documents in the two main files were jumbled and in no particularly sensible order. Overall no more than 50 documents were referred to at trial. The task of trying the case was made far more difficult than it needed to have been. Such matters would normally result in a modest deduction from the Claimant's costs. However, a far more serious matter arises. The Claimant has succeeded only because his true case emerged one week before the trial, when his witness statement containing his evidence about the third contract was served. He had failed to inform Mr France, the expert about this, before 12 May 2010 although he had every opportunity to correct the misapprehension under which he was labouring. He or his solicitors have been less than frank with their opposite numbers, and at times have misled them, for example with their letter of 5 March 2009 enclosing the re-amended Particulars of claim and referring to plans MK03A and 04. This sort of behaviour is not what is expected of solicitors or their clients under the CPR. While a successful Claimant is normally entitled to his costs, in this case, as a result of his misconduct of the litigation, I shall not award him any costs at all. I do not consider that I can go further and award costs to the Defendant."
By a notice of appeal filed on 16 July 2010 the claimant appealed against the judge's order on two grounds. The first ground was that the judge had erred in holding that a payment of £5,000 made by the defendant to the claimant was referable to the first and second contracts. The second ground of appeal was that the judge had erred in failing to award costs to the claimant. Etherton LJ considered this matter on the papers. He refused permission to appeal on the first ground, that being a question of fact which the judge had decided on oral evidence he had heard. Etherton LJ granted permission to appeal on the second ground, because he regarded it as arguable that the judge had erred in principle in failing to make any award of costs.
(i) On the judge's findings of fact (viz that there was a third contract, the work was done and the work was paid for by the defendant), the defendant must have been aware of the third contract and of the work done under it. The defendant must have been aware that he agreed to pay a substantial sum for works to be done in the roof of the premises, that this sum was additional to the sums due on contracts 1 and 2, and the defendant must have been aware that he paid that sum. Whether it is precisely £21,000 or some slightly different sum is not material to the present issue. Therefore the defendant has some responsibility for the confusion which was engendered in this case. Furthermore, since the defendant must have been aware of the third contract, the claimant can hardly have expected to proceed the whole way through the trial without the existence of the third contract being made plain.
(ii) The particulars of claim make it clear that the roof works are not part of the works for which the claimant was claiming payment. The works for which the claimant was seeking payment are set out in some detail in the re-amended particulars of claim and the accompanying schedules. Furthermore, although there is a brief reference to reroofing in the re-amended particulars of claim, as explained in Part 2 above, the pleading goes on to set out that no works were done under the second contract in respect of re-roofing and no claim is made for payment in that regard.
"If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.."
Lord Justice Tomlinson:
Sir Anthony May:
Order: Appeal allowed