England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANCASTER COUNTY COURT
DISTRICT JUDGE FORRESTER
0LA00285

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd July 2014

Lord Justice Aikens :

1. This is the judgment of the court on the issue of the costs of this appeal, in which we handed down judgment on 21 May 2014: see [2014] EWCA Civ 703. The appeal was dismissed. The respondents, whom we called "the Club" in the main judgment now seek an order for costs against the appellants, whom we called "the Higsons". Such an order would normally be bound to follow the event, but the history of these proceedings were not normal and the parties have submitted written submissions on the issue which we have considered.
2. Before the judge the issue was where a boundary lay between land owned by the Higsons and a narrow track at the end of which lie the grounds of the Bowerham Lawn Tennis Club (ie the Club) on the outskirts of Lancaster. The judge based his decision partly on his construction of a conveyance of 1921. However, he did not have the original of the conveyance and the certified copy that he had was not, in fact, accurate. This led the judge to a false conclusion on the ownership of the relevant parcels of land.
3. After the trial before the judge the Higsons obtained a copy of the original that was accurate and they sought to adduce this as "fresh evidence" on appeal. We considered this application at the outset of the hearing on 1 May 2014 and allowed it. In [24] of my judgment I stated that in view of the overriding objective of doing justice we must receive the original of the 1921 conveyance and the plan attached to it, despite the fact that it could have been obtained by either side with reasonable diligence at the time of the trial.
4. This decision did not, however, make any difference to the final outcome of the appeal. The Club's claim to the right of way across the full width of the narrow track was confirmed, as was its ownership of the land of the track. The mandatory injunction and costs and other orders made by the judge were, in principle, retained, subject to some small amendments to the wording.
5. The Club submits that it is entitled to its costs of the appeal and asks that the costs be summarily assessed. The Club's schedule of costs of the appeal totals £27,314.92 (including VAT). Mr Lander, counsel for the Club, points out that the Club has "beaten" a number of (non Pt 36) offers made to the Higsons. The Higsons resist this claim, although they accept that the Club is entitled to a proportion of its costs. But Mr Demachkie, on behalf of the Higsons, submits that the Club was unreasonable in resisting the application to adduce the original of the 1921 conveyance in evidence on the appeal and that, in all the circumstances the Club should only have 2/3 of its costs. Mr Demachkie also makes some criticisms of the figures in the Club's costs schedule and says that the figure sought is excessive.
6. We have concluded that the general rule on costs – that they should follow the event – is the correct rule to apply in this case. The Higsons could have obtained the original of the 1921 conveyance with reasonable diligence for the trial and the only reason that we allowed the document to be adduced was to ensure that we decided the issue on the true facts. The Club's position cannot be described as unreasonable, in our view. Therefore, in principle, the Club is entitled to its costs.
7. However, we do have sympathy with some of the criticisms made by Mr Demachkie of the Club's costs schedule. We agree that the figure for telephone attendance on the respondents and on others and the work done on documents are excessive. In regard to the latter point the high figure for grounds of appeal and instructions to counsel and counsel's fee for advice, conference and documents are excessive as being duplication. We agree with the Higsons' comments on the costs of the respondent's notice, the costs for examining counsel's skeleton argument, "transcripts and note to counsel" and reviewing correspondence. We accept that there is no need for a partner to check bundles and skeletons.
8. We therefore assess the Club's costs summarily at £18,916. The Club must confirm whether VAT is chargeable. The Higsons must pay the costs assessed (with or without VAT as confirmed by the Club) within 14 days of this judgment and the costs order being handed down.