England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Karsten QC
6UB04434

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2011

Lord Justice Rimer :

1. The appellant, Tanya Grand, is the claimant in proceedings she brought against her former landlord, Param Gill, the respondent, in the Central London County Court. She claimed damages for breach of covenant. She represented herself at the trial; Mr Gill was represented by counsel. By his order of 7 May 2009, His Honour Judge Karsten QC awarded Ms Grand damages of £5,600.
2. With the limited permission of Patten LJ, Ms Grand appealed against that order. We heard the appeal on 1 March 2011, by when Ms Grand had the good fortune to be represented by John de Waal, counsel acting pro bono. Mr Gill represented himself. The outcome, as explained in our judgments of 19 May ([2011] EWCA Civ 554), was that we increased the judge's award of damages from £5,600 to £6,275 and awarded interest on the increased sum from 1 December 2007 down to the date of the judge's order. The overall result was that we substituted an award of £6,454.82 damages and interest for the £5,600 damages awarded by the judge. Ms Grand's appeal therefore succeeded, although it yielded a gain of only £854.82.
3. We also ordered Mr Gill to pay £2,500 costs to a prescribed charity. We did so in exercise of the jurisdiction to make a costs order in respect of pro bono representation under section 194 of the Legal Services Act 2007, as I explained in paragraph [29] of my judgment. The costs related exclusively to Mr de Waal's time devoted to the preparation and presentation of Ms Grand's appeal.
4. Following the delivery of judgment, Ms Grand indicated a wish to apply for costs against Mr Gill in respect of her own time spent and disbursements incurred as a litigant in person in her appeal. Whereas an opposed application for costs following an appeal in a case dealt with by solicitors and counsel would normally be dealt with by an exchange of written submissions within a couple of days, Ms Grand sought and was given an unusually generous time within which to present her application. Mr Gill sought and was given like time to answer it.
5. In the event, Ms Grand was late with her submissions, her explanation being that a computer failure prevented her from emailing them in time. On the following day, a Friday, she did, however, deliver them in person to the Civil Appeals Office; and, her computer by then restored, she emailed them to the court and Mr Gill over the weekend. Mr Gill opposed the giving of an extension of time to Ms Grand but we considered it fair to do so, taking the view that it would be disproportionate to penalise her for technological difficulties that were presumably beyond her control, particularly as she had then personally delivered her application to the court.
6. We therefore extended Ms Grand's time and gave Mr Gill a corresponding extension for his response. He failed to meet it and sought a further extension of up to six weeks. We could see no justification for that. We extended his time for his response to 4 pm on 11 July 2011 and he submitted his representations in time. He made some legitimate criticisms of features of Ms Grand's costs application, emphasising that she had pro bono assistance from January 2011 down to our judgment in May. He also appears to misunderstand her application as an attempt to 'resuscitate what was dismissed at the previous hearing dated 1 March 2011.' That is a reference to the hearing of her appeal, although we did not then 'dismiss' anything. It is probably a reference to Ms Grand's then abandonment of her appeal to the extent she was complaining that the judge had failed to award her any special damages, part of which was said to be for £49 in respect of printing costs that she claimed to have incurred for the purposes of the trial. Such costs were not of course recoverable as special damages; and by her present application Ms Grand is not seeking to recover costs under that head, which were costs she claims to have incurred in pursuing her claim to trial: she is only seeking to recover her costs of pursuing the appeal. Mr Gill also devoted much of his effort to the merits of the issues that were before the trial judge. That, however, is of little relevance to the merits of Ms Grand's costs application now before us.
7. I turn to Ms Grand's application. The background appears in our May judgment, which I shall take as read. Ms Grand asks for costs of £15,257.50. She also asks for interest on that sum at 8% from 1 July 2009 to date, a request apparently assuming that the entirety of her claimed costs had been incurred by 1 July 2009, which they were not, and so her interest claim has a penal element about it. She also asks for the imposition of a monetary sanction of £1,100 upon Mr Gill on a basis I do not understand. She is therefore asking for a total award of some £18,800. As the appeal occupied less than a day before us, I consider that the court should, if satisfied that Ms Grand is in principle entitled to an order for costs against Mr Gill, assess such costs summarily.
8. Ms Grand has, in a witness statement made in support of her application, explained the disadvantages she faced in pursuing the appeal. First, English is not her first language. Second, she is not a lawyer. She has therefore had to spend much time educating herself as to the applicable law and how to pursue her appeal. She explains how, since May 2009, she has made 17 visits to the Advice Bureau at the Royal Courts of Justice at which she has sought guidance about her case and has 'infinitely many times' visited public libraries in relation to it, where she has researched the law. She explains how she has carried out research through the internet. She explains the labour involved in preparing her grounds of appeal, skeleton argument and the appeal bundles. She raises complaints about Mr Gill's conduct in the proceedings, although many have nothing to do with the appeal. In advancing her application, Ms Grand does not claim to have suffered financial loss for her time spent on doing the work and so the amount she can recover in respect of such time is, she recognises, limited to £9.25 per hour. There is, however, a cap on what she can recover, namely two-thirds of the amount that would have been allowed had she been represented by a lawyer. Ms Grand has, in addition to her narrative explanation of her time and effort expended on the appeal, provided a breakdown of her heads of claim, claiming for her time at £9.25 per hour and identifying her claimed disbursements. The total is £15,257.50.
9. In deciding what, if any, costs order to make, the court must have regard to the considerations explained in CPR Part 44.3. They are familiar and need no setting out. They show that the court has a discretion both as to whether to make an order for the payment of costs by (in this case) Mr Gill to Ms Grand and, if so, as to the amount of any costs. In deciding whether to make any costs order, the court must have regard to all the circumstances, including (amongst other things) whether Ms Grand has succeeded on part of her appeal, even if she has not been wholly successful; whether it was reasonable for her to raise, pursue or contest a particular allegation or issue; and whether, having succeeded in her appeal, in whole or in part, she has exaggerated it. If the court decides to make a costs order, Part 44.3(6) describes the range of orders it may make. If any costs are to be awarded to Ms Grand, they can, I consider, only properly be awarded on the standard basis; and, on that basis, Part 44.4 requires the court only to allow costs that are proportionate to the matters in issue and to resolve in favour of the paying party any doubt as to whether the receiving party's costs were reasonably incurred or reasonable and proportionate in amount.
10. Mr Gill resisted Ms Grand's appeal unsuccessfully. I consider, therefore, that in principle Ms Grand is entitled to an order for costs. Equally, I have no doubt that her claim to recover costs of over £15,000 is unjustified, unjustifiable and disproportionate. The primary basis for that assessment is that the appeal occupied less than half a day of court time and (apart from the tiny point about interest) turned on a short issue as to the judge's assessment of damages in respect of which almost the only work of any value was that performed by Mr de Waal, who in particular provided valuable assistance by referring us to the relevant reported authorities. Mr Gill has already been ordered to pay costs in respect of a proportion of Mr de Waal's time devoted to the appeal.
11. I do not of course overlook that, in bringing the appeal before the court, Ms Grand played the key role and ought therefore also to be fairly compensated for her time and disbursements reasonably incurred in doing so. But in my view the considerations of fairness and proportionality require that she ought only to be so compensated for that part of her efforts that can be regarded as fairly referable to the two short issues on which she ultimately succeeded. Put the other way, there is no reason why Mr Gill should compensate her for work that she did, or expenditure that she incurred, in bringing the appeal that was misdirected or wasted.
12. Before turning to Ms Grand's costs schedule, I first refer to the primary documents she created in support of the appeal with a view to assessing their value. The first is her appellant's notice, to which were attached 11 grounds of appeal. Patten LJ gave permission only in respect of grounds 2 and 9 (as I said in paragraph 2 of the May judgment, he must have intended to refer to ground 10, rather than 9). Ground 2 was that the judge had failed to make any order in respect of special damages or interest. Whilst the interest point was pursued and succeeded, the special damages claim was abandoned at the hearing. Ground 10 raised a discursive complaint about the judge's damages award, almost the whole of which was irrelevant to the case made by Mr de Waal. That case was based on Patten LJ's identification of an arguable error in the judge's assessment of damages, one not expressly identified in ground 10. Save that the preparation and filing of the appellant's notice and grounds were essential steps in launching the appeal, Ms Grand's time and effort devoted to their preparation were therefore almost wholly misdirected and so there can no good reason for Mr Gill to pay for more than a modest part of her time and effort so spent. Nor, for like reasons, is there any justification for ordering him to pay costs in respect of the amended grounds of appeal that Ms Grand subsequently produced. It raised another 10 grounds but she neither sought nor obtained permission to appeal in respect of them.
13. Ms Grand's skeleton argument in support of the appeal was, with respect, a similarly valueless document. It ran to some 27 pages, of which the 14 lines devoted to ground 2 of her appellant's notice can be regarded as of relevant assistance. To the extent that it dealt with the general damages appeal (under the heading 'Ground 9', although it would appear it ought to have been headed 'Ground 10'), it may fairly be said, over its seven or so pages, to have included the complaint in respect of the damage to the plaster. It did not, however, do so expressly and, insofar as it included it at all, it concealed it within a large amount of unhelpful additional arguments, which simply served as a distraction from, rather than a focussing upon, the key point. As I followed it, it also advanced a claim that the judge ought to have awarded damages of over £26,000 as compared with the £5,600 that he did award. Mr de Waal rightly did not suggest that the damages should be increased by anything like that; and we increased them by only £675. Ms Grand therefore advanced an exaggerated case in her skeleton argument. For my part, and again with respect, I regarded that argument as having been of no assistance in understanding the short, main issue that was ultimately argued. The only skeleton argument that was of assistance for that purpose was Mr de Waal's.
14. Approaching Ms Grand's application in more positive terms, she ought, I consider, to be entitled in principle to the cost of obtaining a transcript of the judge's judgment, although she does not appear to claim this as a disbursement; a small proportion of the costs of the preparation of her appellant's notice, grounds of appeal and skeleton argument; a fair reimbursement for the costs of preparing and copying bundles for the use of the court, although as they include much irrelevant material (section C and most of the material in section E), her recovery in that respect ought also to be moderated; a reasonable sum for time expended in researching how to process her appeal (costs of research are in principle recoverable by her: R. v Legal Services Commission, Ex p. Wulfsohn [2002] EWCA Civ 250; [2002] 3 Costs LR 341); and a sum for her disbursements reasonably incurred in processing it. I turn now to the heads of claim in her costs schedule.
15. Ms Grand claims first for 12 hours attending on Mr Gill (£111), including the writing of 17 letters. I do not know to what the letters related but there must have been a need to communicate with him in relation to the appeal. On the other hand, the court has learnt since the delivery of its May judgment that Ms Grand and Mr Gill are prone to engage in unconstructive email exchanges (they have for some reason included the court in many of them) and I am not prepared to presume that this head of claim was fully justified. I would allow just a quarter of it, or £27.75. She next claims over 11 hours attending the county court, plus various letters and telephone calls. Time of that order spent in the county court in relation to an appeal to the Court of Appeal has no apparent justification, Ms Grand has not provided any, I am not satisfied that this head of costs is recoverable and I would disallow it. She next claims for over 43 hours attending the Court of Appeal and for 28 telephone calls and 34 letters out, a total cost of £639.80. I accept that Ms Grand will reasonably have had to spend some time of this nature in promoting her appeal, but without justification for the full amount of her claim, and there is none, it appears disproportionately high. I would allow 20% of it, or £127.96.
16. Ms Grand next claims for over 17 hours attending upon 'Barrister' and for 12 telephone calls and 34 letters out (a total of £485.30). I do not know who the barrister is but presume that such contact was for advice or assistance and do not understand how she can claim in respect of her own time spent in obtaining it. I disallow this head. Ms Grand's next head of claim is for over 45 hours travelling to and attending at Advice Bureaux, plus 27 telephone calls and two letters, a total of £658.35. On the basis of an eight hour day, the 45 hours represents over five days work. Ms Gill does not explain the precise purpose of this activity or show that it achieved any benefit in relation to the two issues argued at the appeal and so I would disallow this head of claim.
17. Ms Gill's next head of claim is £183.50 for attending on and communicating with Osbornes (24 telephone calls and 36 letters). They are solicitors who at one stage acted for her. Again, she does not explain, and I do not understand, how that can be justified and I would disallow it. I would also disallow her claimed costs in respect of her attendance on Mr Gill's 'solicitor/barrister' (£97.15), which is not justified either; attending, telephoning and writing to an interpreter (£245.15); 21 hours travelling to and from, and 52 hours (the equivalent of another six days work) attending at, libraries, plus 58 telephone calls (£855.30); and for £447.90 under the unexplained heading 'Other'.
18. Ms Grand turns to work done on documents, for which she claims 190 hours (£1,750.50). The work includes 'applications, transcription request, appellant's notice, appeal questionnaire, grounds of appeal, skeleton argument, five bundles, amendment grounds of appeal, draft order, witness statement, statement of costs.' I do not know what the 'applications' are and would not allow anything for them. The 'transcription request' ought reasonably to have involved only the smallest amount of time. As Ms Grand did not pursue the amended grounds of appeal, she is not entitled to costs in respect of her work on them. The draft order is, I understand, her proposed costs order, but its creation was unnecessary; and the witness statement is, I presume, that made in support of her costs application.
19. I do not know how the 190 hours is apportioned. On the basis of an eight hour day, they equate to almost 24 days work. If they are then related to the duration and nature of the appeal ultimately argued, the primary issue in it having been one upon which Ms Grand never expressly focussed, it is obvious that the 190 hours need a good deal of justifying. I accept that Ms Grand is entitled to fair and proportionate compensation for her work done on the transcription request, appellant's notice, appeal questionnaire, grounds of appeal, skeleton argument, the preparation of the bundle (but not of 'five bundles' – that can only be a copying cost) and the documents prepared in support of her costs application. I have, however, explained why I consider that almost all the work on the grounds of appeal and skeleton argument was misdirected and the bulk of the work in respect of them should be disallowed. As the bundle included too much irrelevant material, the recoverable cost of its preparation should also be reduced. As I would regard the costs application as asking for costs on an exaggerated and unjustified basis, I would also disallow any claim in respect of its preparation. So approaching the work done on documents, and necessarily adopting a broad brush approach, I would assess Ms Grand's recoverable hours of work on documents at 20 hours, or £185. I would regard that as properly proportionate to the pursuit by a litigant in person of an appeal based on the two short issues ultimately argued.
20. Ms Grand's next head is research, for which she claims for 730 hours. I do not understand how this figure ties in with the separate claim in respect of 73 hours for travelling to and attending at libraries, which I have disallowed, and presume it to be an additional claim. Again, on the basis of an eight hour day, her claimed time equates to 91 days work. Ms Grand already knew about her right to claim interest (she had asked for it in her original particulars of claim) and so any claim for costs in respect of further research in relation to that is not justified. Her research also does not appear to have produced any material contribution to the ultimate basis of her appeal in relation to damages. So far as the substance of the appeal was concerned, her 91 days work appears therefore to have been wasted. I would allow at most a modest cost for her research into the formalities of processing her appeal, for which I would allow 10 hours, or £92.50. Ms Grand then claims £57.85 for travel to and attendance at the hearing of the appeal, which was conducted by Mr de Waal. That is irrecoverable. Mr de Waal was doing the work. She was simply attending the hearing as his client in order to instruct him.
21. As for disbursements, Ms Grand totals them at £2,700. I regard the bulk of that as unjustified. The first three items are for: (i) photocopying four bundles, (£200.80); (ii) photocopying various other classes of document, (£169.10); and (iii) printing out yet other documents (£234.20).
22. As for item (i), the bundles included much irrelevant material and so I would allow only 70% of the claimed cost, or £140.56. As for item (ii), virtually none of the documents imprecisely referred to – 'applications; CPR; PD; letters; evidence, examples of draft grounds of appeal, skeleton argument, forms, orders; instructions regards of appeal [sic]' – represent documents the copying of which ought to be borne by Mr Gill in the light of the basis of the appeal ultimately argued. Why, for example, should be pay for 'examples of draft grounds of appeal'? The only cost under this head that I would allow is a proportion of the copying costs of Ms Grand's almost wholly valueless skeleton argument, for which I would allow £10. Item (iii) refers to printing out 'applications/forms; grounds of appeal; skeleton argument; amendment grounds of appeal, letters, case law; witness statement; statement of costs; emails; other.' I would allow only £20 under this head.
23. The remainder of the disbursements include items under various heads, including postage, stationery, extra electricity charges incurred by Ms Grand whilst working on the case and travel expenses. They total £2,166, of which the major item is £1,460 for travel costs, including to and from the Court of Appeal, libraries and advice bureaux. I am not satisfied that disbursements totalling £2,166, or anything like it, are fairly recoverable, but I accept that Ms Grand will reasonably have incurred disbursements of at least a part of that figure. Adopting a broad brush approach, I would allow £100 of this item.
24. The overall result is that I would make an order for costs in favour of Ms Grand totalling £703.77. I would not order the payment of interest, nor would I impose the sanction of £1,100 for which Ms Grand asks. I would order Mr Gill to pay the £703.77 within 14 days of the date on which our judgments on this application are handed down.

Lord Justice Lloyd :

25. I agree.

Lord Justice Thomas :

26. I also agree.