England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
His Honour Judge Pearce-Higgins QC
7WR00149/7WR00150/WR02352

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2012

JUDGMENT ON OUTSTANDING ISSUES

Lord Justice Kitchin:

1. This is the judgment of the Court in relation to the outstanding matters following our main judgment [2012] EWCA Civ 671. They are:

i) the substantive form of order;

ii) costs.

2. We would say at the outset that we have had the benefit of further written submissions from the appellant, Mr Hall, and from counsel on behalf of the respondents, Mr and Mrs Harris and Mrs Moore, to which we have given careful consideration.

The substantive form of order

3. Counsel for the respondents have proposed an order which reflects our judgment. Specifically their draft order records that Mr Hall's appeal has been allowed to the extent of substituting the revised declarations set forth at paragraphs [40], [46] and [52] of our judgment for those made by His Honour Judge Pearce-Higgins QC in his order of 4 April 2011 as amended on 22 June 2011 and 2 March 2012. It also records that the cross-appeal by Mr and Mrs Harris has been dismissed.
4. Mr Hall, on the other hand, has proposed an order which bears little or no relation to our judgment and, indeed, includes a series of orders and declarations in relation to matters which were not raised at the hearing of the appeal by Mr Hall or counsel then appearing on his behalf and in relation to which we have made no findings.
5. We have no doubt that the appropriate order to make is that which is proposed by counsel for the respondents. This order accurately reflects the issues raised on the appeal and our findings in relation to them. It is now too late for Mr Hall to seek to re-argue points in relation to which we have expressed our conclusions and to take new points which were not the subject of the appeal and which were not developed before us either in writing or in oral submissions.

Costs

6. Counsel for the respondents invite us to order that the respondents should have all their costs of the appeal and the cross-appeal, and that the costs order made by the judge should stand.
7. Mr Hall counters that each party should be responsible for his or her costs from January 2007, the date proceedings commenced.
8. The general principles which must guide the court in exercising its discretion as to costs are set forth in CPR Rule 44.3. So far as relevant to this case, we particularly have in mind the following.
9. The court has a discretion as to whether costs are payable by one party to another and the amount of those costs. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but the court may make a different order. In deciding what order to make about costs the court will have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of his case, even if he has not been wholly successful, and any offer to settle which is made. The orders that a court may make include an order that a party must pay a proportion of another party's costs or costs from or until a certain date only.
10. Dealing first with the costs of the appeal and the cross-appeal, we believe the following matters are relevant. First, the respondents have largely succeeded, and in particular have succeeded on the main issue as to whether Mr Hall's right of common was exercisable every year or only one year in three.
11. Second, during the course of the appeal the respondents conceded that Mr Hall may (a) bring vehicles onto Luckwards Hill if necessary to protect the welfare of his animals; (b) cut, remove or prevent noxious weeds subject to the terms set forth in paragraph [46] of our judgment; and (c) secure access to Luckwards Hill through gates B and C and across Luckwards Hill through a second gate on the boundary between the land owned by Mr and Mrs Harris and that owned by Mrs Moore in the manner set forth in paragraph [52] of our judgment.
12. Third, the respondents made these concessions once the case against them had been properly articulated by counsel then acting for Mr Hall in his late skeleton argument and in his oral submissions.
13. Fourth, the cross-appeal by Mr and Mrs Harris failed, although it must be noted this did not occupy very much time at the hearing of the appeal.
14. In all these circumstances we believe that the respondents must be regarded as the overall winners of the appeal proceedings but that justice demands that a discount be applied to their costs to reflect the concessions which they made. We also believe it appropriate to apply a further modest discount to reflect the failure of the cross-appeal. We do not think that a separate order is appropriate in respect of the cross-appeal, given the small amount of time it occupied and the difficulty of separating the costs from the costs of the appeal.
15. There is one further matter we would mention in relation to the costs of the appeal proceedings. The respondents were represented by leading and junior counsel. Mr Hall was represented by junior counsel appearing pro-bono. While we were immensely grateful to leading counsel for his clear and thorough submissions and his constructive approach in addressing Mr Hall's concerns and formulating the concessions to which we have referred, we do not believe that his appearance was necessary and we do not consider that Mr Hall should have to bear any of the costs of his appearance.
16. Having regard to all these matters we believe a fair and proportionate result would be achieved by awarding to the respondents 75% of their overall costs of the appeal and cross-appeal, but excluding the costs of leading counsel.
17. We turn then to the costs order made by the judge at the trial. He directed that Mr Hall must pay those costs. We have reached the conclusion that it is appropriate to leave his order undisturbed, essentially for the reason advanced by counsel for the respondents. The need for the concessions made by the respondents on the appeal was not properly developed by Mr Hall before the judge, notwithstanding there was a post-judgment hearing at which the form of order was discussed.
18. We would ask counsel for the respondents to submit a revised draft order in the light of this judgment.