England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
His Honour Judge Barham
Claim No: INR00241

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd January 2014

Lord Justice Rimer :

Introduction

1. The appellant is David Taylor, the defendant. The respondents are Paul and Janette Burton, the claimants. Mr Taylor appeals against an order made on 12 January 2012 by His Honour Judge Barham in Norwich County Court following the trial of a right of way dispute. By his order, the judge (i) ordered Mr Taylor to pay damages of £520 to the Burtons; (ii) declared the location of 'the express right of way conveyed to the [Burtons] by the conveyance dated 14 April 1990' as being over that part of Mr Taylor's land 'shown shaded on Plan 8D' attached to the experts' joint report; (iii) ordered the rectification of title number NK89341 (the Burtons' property) accordingly; (iv) discharged an injunction granted on 12 July 2011; and (v) ordered Mr Taylor to pay the Burtons' costs of the claim.
2. Permission to appeal on grounds 2, 5, 6 and 7 was given by Davis LJ at a hearing on 15 November 2012. His order recorded that the application for permission to appeal on ground 1 'has been disposed of by correcting [the judge's] order'. In fact, ground 1 was not so disposed of and I must explain what has happened to it.

Ground 1

3. Mr Butler, who appears for Mr Taylor, and Mr Darbyshire, for the Burtons, were also both present before Davis LJ. They were agreed at the hearing before Davis LJ that the area of servient land identified by Judge Barham's order (see [1](ii) above) was wrong, and the outcome of the hearing was that the parties were to agree a plan identifying the area of the servient land that the parties were agreed that Judge Barham had intended to identify. When that was done, the intention was that Judge Barham's declaration should be amended under CPR Part 40.12 (the slip rule). None of that, however, happened. Counsel were therefore also agreed at the hearing before us that ground 1 was, or ought in the events that had (or had not) happened, to be regarded as before us for substantive determination.
4. We heard various representations in relation to ground 1. The outcome was that at the end of the argument we adjourned any determination of that ground with a view to enabling the parties to agree its disposition in a way that they had not previously been able to agree. Counsel were confident that agreement could be reached, as it seemed to the court it should be. In the event, and following the hearing before us, the parties made rapid progress and notified the court of the essence of the terms that were proposed for the disposal of ground 1. The court responded with some suggestions as to how two particular aspects of the proposed terms might be improved upon, one of them being with a view to avoiding the arising of further dispute at a later stage. The court expects the parties to be able to dispose of ground 1 by agreement, but if not it will have to be referred back to the court for its determination.
5. Before coming to the other grounds of appeal, I should summarise the facts found and conclusions arrived at by the judge. What follows is derived from his judgment, which he provided to the parties in December 2012.

The facts found and conclusions arrived at by the judge

6. The Burtons are the freehold owners of a bungalow, outbuildings and land of about 3.75 acres known as Cloverfield, Lopham Road, East Harling, Norwich ('Cloverfield'). Cloverfield had been conveyed to them by a conveyance of 4 April 1990, which granted them the following right of way over what I shall 'the track':

'The Vendor hereby grants unto the Purchasers in fee simple the right for the Purchasers their successors in title owners or occupiers for the time being of [Cloverfield] (in common with the Vendor his successors in title and all persons authorised by him or them) to pass and repass at all times and for all purposes with or without vehicles over and along the driveway shown coloured mauve on the [attached] plan and forming part of the Retained Land upon payment of a proportionate part of the expense of keeping such driveway in repair'.

Following that conveyance, the Burtons' title to Cloverfield was registered under Title No NK89341.

7. Mr Taylor is the freehold owner of the track and of land adjoining the south-eastern boundary of Cloverfield, his title being registered under Title No NK342980. He bought his property in 1998. His land is used for industrial purposes. The track runs north from Lopham Road for some distance and then turns west, at which point it runs alongside a southern boundary of Cloverfield to a gateway giving access to Cloverfield. An area of Cloverfield lying to the immediate north of the point at which the track turns west, called 'the red land', has been used by the Burtons as a car parking area. Adjoining the east side of the track at the point at which it turns west, and lying to the south east of the red land, is an approximately triangular area of land belonging to Mr Taylor. This has been called 'the black land'. One of the Burtons' claims in the action was to a prescriptive right of way over the black land or part of it. The basis of this was that, in order to be able to park his lorries on the red land, Mr Burton had to reverse them on to the black land before driving them on to the red land.
8. The litigation was provoked by the fact that both the Burtons and Mr Taylor have obtained planning permission to build houses on their land. The Burtons claimed a need for the right of way they asserted in order to enable heavy goods vehicles ('HGVs') to gain access to the red land. In view of the state of the property market the Burtons had, however, deferred any immediate intention to build and were in the meantime instead raising pigs.
9. Mr Taylor had, however, begun his proposed development. In about September 2010, he began building a road along what he said was the line of the track. Whereas he asserted that it did not interfere with the right of way, the Burtons claimed that it did not follow the line of the track and that Mr Taylor's works had interfered with their rights.
10. The judge explained that he regarded the plan attached to the 1990 conveyance as ambiguous as to the extent of the right of way granted, and he ruled that oral evidence as to its intended extent was admissible. He reviewed the evidence as to this, and held, first, that he accepted the Burtons' evidence that their vendor, Mr Porter, agreed that the right of way he was granting was one that would accommodate the use of HGVs (Mr Burton already owned two HGVs) and that, immediately after buying Cloverfield, the Burtons carried out improvements to the track to enable it to carry HGVs. The judge found as a fact that 'Mr Porter conveyed a right of way for HGVs'.
11. There was, however, still a dispute as to the width of the track over which the right of way was granted. After summarising the rival cases, the judge found, having accepted the evidence of Mr Durrant, the Burtons' expert, that its width varied between about 3 and 4.5 metres along its length, widening at the northern end and being about 17 metres wide at the southern end where the splay met Lopham road. He also accepted Mr Burton's evidence that although he had improved the surface of the track, he did not widen it and that it was wide enough for HGVs. The evidence was that HGVs are 2.5 metres wide.
12. The Burtons' alternative claim was that they had acquired a right of way over the track for use by HGVs by prescription. The judge summarised the evidence, which was to the effect that from 1990 to 1994 Mr Burton was running a business driving 2.44 tonne lorries. He also had trailers and a box van. He was using the track daily. From 1995 to 2010, he used the track infrequently, but would park HGVs and coaches on the red land whilst employed by others. He also allowed others to use the track in order to park HGVs on the red land. Between 1996 and 1998, Mr Alexander used to park his HGV on the red land overnight for four nights a week. From 1993 until recently, Mr Clark used the track to park his HGV on the red land, originally about seven or eight times a year, but less frequently more recently. From 1994 to 2010, Mr Holden used the track to store fuel on the red land, but apparently did so only occasionally. There was other corroborative evidence of such use but the judge did not identify it. The case was apparently supported by both experts, whose agreed evidence was that 'vehicle wheels have passed on a regular basis over the track'.
13. The judge accepted all this evidence and was satisfied also that Mr Taylor was aware that the Burtons had used the track for HGVs, even though there was less use by the time Mr Taylor purchased his property in 1998. The judge concluded that:

'37. … [the Burtons] have proved 20 years user of the right of way for HGVs. Their property was conveyed to them on 14^th April 1990. [The Burtons] had HGVs from the outset and used the track at once to park them. Work on the path was done in the summer of 1990 according to Mr Holden. The interference with the right of way occurred in September 2010. [The Burtons] issued proceedings in April 2011.'

14. The judge turned next to the Burtons' claim to have acquired a right of way over the black land by prescription. He explained that this was based on the Burtons' use of the black land for the manoeuvring purposes I summarised in [7] above. Whilst the judge accepted that the black land had been used as claimed, he also found that Mr Taylor neither knew nor had any means of knowing that it had been so used, for which conclusion the judge gave brief reasons. In light of that conclusion, the judge held that the Burtons had acquired no rights of way over the black land.
15. The judge turned next to consider the Burtons' claim that Mr Taylor had interfered with their right of way over the track. I quote what the judge said and found about this:

'42. … Mr Durrant, [the Burtons'] expert, says that the entrance from Lopham Road has been moved to the west and that the angle from Lopham Road to the road [ie the road built by Mr Taylor] is now 90 degrees whereas before it was at less of an angle. This makes it more difficult for HGVs to enter the road, because of the steeper angle. The road also has a kink to the left 25 metres up the road. At the top of the road the road bears slightly to the right and then to the left, whereas before the track used to bear smoothly to the left. These changes make the drivers' task more difficult, but not impossible.

43. At the view held on the first day of the hearing, a large HGV and trailer drove up and down the road carrying out, in the process, the parking manoeuvre at the top. It is plain that the road can be used for the same purpose as the track.

44. At the view the HGV went over the kerb on leaving the road and driving onto Lopham Road. Much was made of this by [Mr Burton] who claims that there is a danger of lorry tyres exploding if they strike the kerb. No expert evidence was produced to support this contention. In any event, [Mr Taylor] produced a video of a similar HGV carrying out the same manoeuvre without hitting the kerb. Counsel for [the Burtons] conceded that it was possible for a HGV to avoid hitting the kerb.

45. Nevertheless, I accept the evidence of [the Burtons'] expert, Mr Durrant, that the manoeuvre is more difficult to carry out than it was before. I conclude that the right of way cannot be substantially and practically exercised as conveniently as before. However, I also consider that:

1. the injury to [the Burtons'] rights is a small one;

2 it is capable of being estimated in money;

3. it can be adequately compensated by a small money claim;

4. it would be oppressive to [Mr Taylor] to grant an injunction to require [him] to alter the right of way;

The cost of altering the junction alone would cost approx. £5,000. I assess damages under this head at £500.

46. [Mr Burton] claims damages for the obstruction of the right of way when the road was being built. It was obstructed. However, the [Burtons] had another access to and from their property, the obstruction was temporary and there was no evidence of actual inconvenience. I grant nominal damages.

47. [The Burtons] also claimed damages for trespass caused by [Mr Taylor's] builders entering their land and overhanging guttering on their property. I accept that the trespass is proved, but there was no inconvenience or harm caused. I award nominal damages.'

16. The judge recorded that the Burtons had not pursued their claim for a declaration as to the boundaries of Cloverfield. They did, however, ask for a declaration defining the position of the right of way. As to that, the judge said:

'50. … I accept that plan 8D accurately represents the right of way to which [the Burtons] are entitled and reject the contrary opinion of [Mr Taylor's] expert. This is subject to one qualification. If plan 8D includes the black land it needs to be amended to delete it. Subject to that qualification [the Burtons] are entitled to a declaration that the right of way is shown shaded pink on plan 8D.'

17. It was this that led to the mistake in the judge's order that led to ground 1, a mistake made even though the judge was addressed about it at a hearing on 12 January 2013. I need, however, say no more about ground 1.

Ground 2: did Mr Taylor substantially interfere with the Burtons' right of way?

18. It is clear law that it is not any interference with a right of way that entitles the dominant owner to complain. The threshold that must be crossed before such interference becomes actionable is when the interference is plainly obstructive of the reasonable use of the easement. As Russell LJ put it in Keefe v. Amor [1965] 1 QB 334, at 347:

'The grantee of the right could only object to such activities … as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required.'

19. Scott J reviewed the authorities, including Keefe's case, in Celsteel Ltd and others v. Alton House Holdings Ltd and another [1985] 2 All ER 562, at 572d to j, and concluded by saying:

'There emerge from the three cases I have cited two criteria relevant to the question whether a particular interference with a right of way is actionable. The interference will be actionable if it is substantial. And it will not be substantial if it does not interfere with the reasonable use of the right of way.'

A more recent restatement of the principles is also to be found in Mummery LJ's judgment in West v. Sharp (2000) 79 P & CR 327, at 332.

20. I have set out in full the judge's findings on this issue. Mr Butler's submission was that the judge's review of the evidence did not justify his finding of substantial interference. The net effect was that the judge held that the road could be used for the same purpose as the track it had replaced; there was no expert evidence supporting the Burtons' case that HGVs went over the kerb; on the contrary, there was evidence that HGVs could perform the required manoeuvres without hitting the kerb; and counsel for the Burtons conceded as much. All that was left in support of the 'substantial interference' was Mr Durrant's opinion that the manoeuvres were more difficult to carry out. There was a real question as to what expertise Mr Durrant had to express an opinion on such matters. In the result, the judge's conclusion was unsupported by sufficient evidence of material interference and so was wrong.
21. Mr Darbyshire submitted that this way of putting Mr Taylor's case overlooked the reality of the changes resulting from the realignment of the track by the building of the new road. The judge heard oral evidence as to the degree of difficulty that the realignment presented to the use of HGVs on the road, and recognised that it went both ways. Mr Durrant, however, was clear in his evidence (of which we have a transcript) that it was 'more difficult to drive a truck down the new road, unless one goes over the kerbs or the edge of the road onto the grass again' and that '… in a vehicle it would be more difficult than it used to be …'. The judge was aware of the conflict in the evidence as to the degree of driving difficulty imposed by the realignment of the right of way, but 'nevertheless accepted' Mr Durrant's evidence which was to the effect that the interference was substantial. Mr Darbyshire submitted that he was entitled to do so, and that this court cannot properly interfere with his finding in this respect, which was one of fact.
22. Mr Taylor's challenge as to this part of the judge's conclusions is to a finding of fact by the judge. It is clear that his assessment, after considering the evidence, was that the consequence of Mr Taylor's re-alignment of the track by the building of the road is that it is more difficult than it was before for HGVs to negotiate the road. It is more difficult both at the point of entry from Lopham Road and also in the upper part of the road where it bears slightly right and then bears left. The judge had a view of an HGV and a trailer using the road, which showed that the road can be used by such vehicles, as could the track before it, but the judge also noted that the HGV went over a kerb when driving onto Lopham Road. The judge also saw, as did we, a video of an HGV manoeuvring the upper part of the road. It was apparent to me that its negotiation required the use of considerable skill by the driver; and although Ryder LJ and I both considered that at one point the vehicle's offside wheels had crossed the kerb, we were assured, and accept, that in fact they had not. On any footing, it was apparently a very close thing.
23. The judge ultimately accepted as decisive the evidence of Mr Durrant that the required manoeuvring of an HGV using the road was more difficult than it had been before. It is not entirely clear to me to what extent Mr Durrant, who is not, I understand, an expert in the driving of HGVs, was able to give evidence that was more informative for the judge than was the experience of his own site visit and his consideration of the video. There was however, I understand, no objection to Mr Durrant giving evidence on the topic and the judge took his evidence into account.
24. This ground of appeal can only succeed if this court is satisfied that the judge's finding of fact as to the degree of interference was wrong. It would only be wrong if it was wholly unsupported by evidence, was against the weight of the evidence or was perverse. In my judgment, whilst I regard the decision as having been a marginal one, I am unable to conclude that it was wrong. I would dismiss this ground of appeal.

Ground 5: the costs of the Burtons' amendment of the particulars of claim

25. On 1 November 2011, there was a pre-trial review before His Honour Judge Moloney QC. It was conducted over the telephone, with Mr Darbyshire representing the Burtons and Mr Taylor representing himself. The judge gave various directions in relation to the preparation for trial, which I need not detail, but of direct relevance is that he also made an order permitting the Burtons to amend their particulars of claim in the form of a draft annexed to the order. He permitted the service of an amended defence and also permitted Mr Taylor to serve further statements of fact dealing with any new factual issues arising in the Burton's amended case. He ordered that the '[c]osts of and occasioned by the amendment are reserved to the trial judge.'
26. Whereas the original particulars of claim had pleaded the conveyance of 4 April 1990 and the grant of the right of way by it, the amendment developed the Burtons' case based on that grant. It pleaded that the right of way had been the subject of express negotiation with the vendor and that, but for the grant of the right of way, the Burtons would not have bought Cloverfield. It pleaded that they wished to use the right of way for accessing their land with HGVs, which they used for their business purposes. The pleading asserted that the conveyance plan failed accurately to describe the limits of the servient land and said that the Burtons would rely on Mr Durrant's expert report of 10 September 2011 and supplemental report of 25 October 2011 (for which they already had permission), in particular Mr Durrant's point that 'by relying purely on the measurements taken from the 1990 conveyance [it] is not possible to find a shape that reflects the conveyance plan nor fits in well with the physical features'.
27. The amended pleading then asserted that the conveyance was ambiguous. It continued:

'8. … Admissible extrinsic evidence proves that it was intended to and was effective to convey to [the Burtons] a right of way (hereafter "the Right of Way") as shown shaded blue on plan 8B to the supplemental report [54] that being the true intention of the parties to the conveyance. In particular, the right of way was at least 7.17m wide for nearly its entire length.

9. Further or alternatively, in support of their construction of the Conveyance [the Burtons] rely on section 60 of the Land Registration Act 2002 [which incorporates the 'general boundaries' rule].

10. Further or alternatively, [the Burtons] have used the Right of Way as a means of access to [the Burtons'] Land consistently since purchasing it in 1990. In addition, they have laid hardcore upon it. In so far as their use has exceeded that permitted by the Conveyance, properly construed, they have done so openly, peacefully and without any consent of [Mr Taylor] or his predecessors in title. Accordingly, [the Burtons] have acquired a right of way over [sic] by prescription.

11. Further or alternatively, the Right of Way was obvious from a reasonably careful inspection over the land subject to it and, accordingly, operated as an overriding interest within the terms of paragraph 3 of Schedule 3 of the Land Registration Act 2002.'

28. Paragraph 19 contained a new assertion as to the boundaries of the parties' respective properties. It said that although the boundaries had formerly been in dispute, they no longer were, but the Burtons nevertheless asked the court, for the avoidance of future dispute, to declare that they were as shown on an identified plan. The prayer for relief sought by way of amendment a declaration that the Burtons' right of way was over the land shown shaded blue on plan 8B, and the requested declaration as to the parties' boundaries.
29. In the event the judge made an order that Mr Taylor should pay the Burtons' costs of the action on the standard basis, and he gave a short judgment explaining his reasons for that order. I consider it follows that that order had the effect of also picking up the costs of the amendment reserved by Judge Moloney, but I doubt if Judge Barham realised that. He had not been referred to the fact that those costs had been reserved to him and did not refer in his costs judgment to the fact that they had.
30. Mr Butler reminded us that the general rule is that those who obtain permission to amend are ordered to pay the other parties' costs of and occasioned by the amendment. He referred us to paragraph 17.3.10 in the notes to Volume 1 of Civil Procedure, which records that such orders are 'often' made; and to paragraph 8.5 of The Costs Practice Direction, which records that such orders are 'commonly' made. Both references reflect judicial practice with which anyone with experience of contentious litigation will be familiar. Mr Butler submitted that the judge was wrong to depart from the usual practice and said that although the costs in question had been reserved to him, he ought to have made the usual order in relation to the costs of the amendment.
31. Mr Darbyshire said in his skeleton argument that the amendment was applied for after the expert reports as to the line of the right of way had already been produced, and the opinion in them reflected the uncertainty of that line. It is said that, had the Burtons obtained such expert advice before the claim was started, there might have been no need for the amendment. Mr Darbyshire emphasised that there is no golden rule that the party making the amendment must always pay the costs of and occasioned by it; and that this amendment was not made by consent. He was unclear whether the costs order that Judge Moloney had made had been volunteered by him, or whether he, Mr Darbyshire, had applied for it.
32. Mr Darbyshire also submitted that it cannot be said that the trial judge was not entitled to include the amendment costs as part of the overall costs awarded to the Burtons. He did, however, also indicate that if this court were to take the view that there was a proper basis for it to consider afresh for itself how to deal with this head of reserved costs, he did not wish to advance any submissions other than that it should make the conventional order that the Burtons should bear the costs of and occasioned by the amendment.
33. In my view, the judge was innocently in error in not dealing separately with this head of costs. I say 'innocently' because he was not told that this head of costs had been reserved to him. He ought to have been told and he ought then to have considered separately how to deal with them. He might have decided simply to include them as the costs to which the Burtons were entitled as part of their costs of the claim. He might have thought it appropriate to make a different order. We do not know. As, however, he did not address his mind to how to deal with them, we consider that he fell into error and that, in consequence, we can and should exercise our own discretion as to what order to make in respect of the reserved costs.
34. As to how we should exercise that discretion, we can see no good reason why the conventional order as to the costs of the amendment should not be made. The amendment raised a case based on prescription that succeeded, at any rate in part. It also pleaded a case to the effect that the track was at least 7.17 metres wide for most of its length, which failed, as did its bid for a declaration that the right of way was over the land shaded blue of Plan 8B. It made an irrelevant pleading of the 'general boundaries' rule and of an alleged overriding interest; and it raised a non-dispute about boundaries, which in paragraph 48 of his judgment the judge recorded the Burtons did not pursue. The amendment was therefore in material respects a waste of paper and costs, and in my view there is no reason why the Burtons should not, as is usual, be required to bear the costs of and occasioned by it. I would so order.

Ground 6: the costs of the interim injunction

35. On 9 March 2011, the Burtons made an on notice application for an interim injunction (a) requiring Mr Taylor to remove all obstructions from the right of way, and (b) restraining him from trespassing on Cloverfield or obstructing the right of way. The application came before Judge Moloney on 12 July 2011.
36. The outcome was an interim order, against the Burtons' cross-undertaking in damages, restraining Mr Taylor from building 'the proposed dwelling known as plot 6' shown for identification purposes on a plan annexed to the order. As to costs, Judge Moloney ordered them to be '[the Burtons'] costs if they succeed on the express right of way issue at trial'.
37. Mr Butler submitted that it was clear that the intention underlying this costs order was that, if the Burtons succeeded at trial in showing that they had an express right of way over the land known as plot 6, they should have their costs of the interim application. It is said, however, that they failed in this respect, because although their pleaded case in paragraph 8 of the amended particulars of claim was that the right of way was at least 7.17m wide for nearly all its length, they did not succeed in that case; and it was only if the Burtons were right in that part of their case that any part of plot 6 would be subject to the right of way. The judge, however, rejected their 7.17m case and held, in paragraph 19, that the width of the right of way varied between 3m and 4.5m along its length. This was Mr Taylor's case. The consequence was that the right of way did not extend to the land included in plot 6 and so, by paragraph 4 of his order of 12 January 2012, the judge ordered the discharge of the interim injunction granted on 12 July 2011.
38. When it came to his ruling on costs, the judge said in paragraph 12:

'… I accept that [the Burtons] should be awarded their costs: these are to include an interlocutory injunction which was granted in the course of the proceedings. The injunction has been proved to be justified by the fact that I made a finding of substantial interference with the right of way.'

39. That is said by Mr Butler to have been an error. The building on plot 6 did not constitute any actual or potential interference with the right of way, since plot 6 was not part of the servient land. Had the Burtons made good their case as to the width of the way, it either would or might have been such part. But they did not. The obvious sense of Judge Moloney's order was that the Burtons should have their costs of the application before him if they made good their case at the trial in relation to plot 6. They failed to do so and so should have been deprived of those costs. The costs are substantial, a schedule stating them to have totalled £11,188.80.
40. Mr Darbyshire's response was that the Burtons did satisfy the condition in Judge Moloney's order that would entitle them to costs. The condition was that they should 'succeed on the express right of way issue at trial' and the Burtons did so succeed. Judge Barham held that they had a 'valid claim about the alignment of the new road', and he had been right about that. They had established an interference with the right of way, for which the judge awarded them damages.
41. With respect to Mr Darbyshire, that appears to me to be an improbable interpretation of the costs condition of Judge Moloney's order. That condition was expressed in unfortunately imprecise language, whereas it should have been drafted with precise care. If, however, it is interpreted against the context of the particular dispute that was before Judge Moloney, it is obvious that the 'issue' contemplated by the condition was that concerned with the Burtons' claim that plot 6 encroached on the right of way. Judge Moloney could not have had in mind that they could have their costs if they failed on that point but succeeded on some unconnected issue in relation to the battle about the right of way.
42. In my view, therefore, the condition under which the Burtons were to be entitled to their costs of the interim application was not satisfied, and, with respect, I regard Judge Barham as having fallen into error in holding otherwise. I would set aside his order that Mr Taylor should pay the Burtons' costs of the interim application.
43. We had no argument to the effect that, on the contrary, the Burtons should pay Mr Taylor's costs of that application. Nor in my view would any such argument be justified. I interpret the sense of Judge Moloney's order as being that the Burtons should have their costs if they satisfied the costs condition, but that if they did not, the parties should be left to bear their own costs of the interim application. Mr Taylor may regard this as hard but in fact Judge Moloney's order was relatively favourable to him. Whereas in times gone by 'costs in cause' orders, or 'claimant's costs in cause' orders were commonly made on interim applications, nowadays they are more rarely made, and the winner of an interim application will commonly be awarded his costs there and then, regardless of what happens at the trial. If Judge Moloney had followed this practice, Mr Taylor would have been ordered to pay the costs of the interim application. Judge Moloney, however, decided against such an order. Mr Taylor should be grateful for that.

Ground 7: was the judge wrong to order Mr Taylor to pay the Burtons' costs of the claim?

44. This is, in money terms, the most important ground, the Burtons' costs of the claim being said to be some £120,000. I have indicated my view that in two respects relating to his orders as to costs the judge fell into error, but it is trite that appeals against costs orders are usually very difficult to mount. Orders as to costs are pre-eminently matters for the discretion of the trial judge, who will have had a unique familiarity with the issues and how the proceedings were conducted. The judge is therefore in the best position to decide what order ought to be made as to costs. An appellate court may, in some cases, have a feeling that, had the costs decision been for it to make, it would or might have made an order different from that which the judge made. Without more, however, that is no basis for interference with a judge's costs order. An appellate court will only be justified in interfering with his order if he has misdirected himself in principle as to the applicable considerations, or has taken into account a factor he should not have done, or has failed to take into account a factor he should have done, or has reached a judgment that falls outside the range within which reasonable disagreement is possible. The hurdle faced by a challenge to a judge's costs order is a high one.
45. The judge received argument as to costs on 12 January 2012, from Mr Darbyshire for the Burtons and from Mr Taylor, who appeared in person, as at the trial. Mr Darbyshire was not only asking for the Burtons' costs of the claim, he was asking for them on an indemnity basis. The latter was said to be justified by what was said to be Mr Taylor's inappropriate conduct in the lead up to the trial, but the judge declined in his discretion to award indemnity costs, and no more needs to be said about that.
46. The judge gave a short judgment explaining why, however, he was ordering Mr Taylor to pay the costs of the claim, including the costs of the application for the interim injunction, as to which I have explained why I consider he was in error. This ground of appeal goes to the remaining costs, but excluding the costs of the amendment, upon which I have already expressed my view.
47. By way of summary of his reasons, the judge identified the heads of relief the Burtons were asking for; and said twice in paragraph 4 of his judgment that the claimants had 'substantially succeeded in their claim'. In so saying, he was referring to their success in the claim based on Mr Taylor's interference with their use of the track, and he noted that in that respect he had not granted an injunction but had awarded damages. He then referred to the four grounds advanced by Mr Taylor as to why not only should he not be required to pay any of the Burtons' costs, they should pay all his costs. Mr Butler did not seek to revive before this court any of the first three grounds but he did revive the fourth, which was that the Burtons had not succeeded in everything. The judge accepted this, and noted that they had failed to make good their case as to the width of the track, and had also failed to make good their claim to a right of way over the 'black land'. The judge continued:

'11. … It is correct that [the Burtons] failed to prove those matters, but they were relatively minor matters in the context of the case as a whole, and as I have already indicated, [the Burtons] substantially succeeded and those parts of their claim did not significantly add to the cost of the trial or the length of the trial.

12. Accordingly, I reject [Mr Taylor's] submissions. I accept that [the Burtons] should be awarded their costs ….'

48. The heart of Mr Butler's persuasive attack on that conclusion was that the judge was simply wrong to regard the issues on which the Burtons lost as 'relatively minor' or as not 'significantly' adding to the cost of the trial. He said the issues as to the width of the track and the black land were central issues and their outcome could not simply be dismissed as immaterial in the disposition of the issue of costs in the way the judge had done. He said that we should substitute for the judge's order either (i) a 'no order as to costs' order, or (ii) an order giving the Burtons only a percentage of their costs so as to reflect the issues on which they had failed.
49. The essence of Mr Darbyshire's submissions in response was that it was not for this court to second guess the judge's assessment of the importance of these issues in the context of the litigation as a whole, and he drew attention to the fact that, as regards the 'black land' claim, it was only at the trial that Mr Taylor first advanced the case that he was unaware of the claimed use of it.
50. I have found this issue the most troublesome of the grounds before us, since my instinct is that it might well have been reasonable, and on one view fairer, for the judge to reflect the Burtons' failures in the litigation in his costs order in an appropriate manner, perhaps by applying a discount to their recoverable costs. I have, however, come to the conclusion, albeit with some hesitation and reluctance, that it is just not open to this court to re-consider the judge's costs order. It was he who conducted the trial and he who was in the best position to assess the relative importance of the various issues canvassed at the trial. The transcript of the costs argument shows that Mr Darbyshire reminded the judge of the provisions of CPR Part 44.3, with which he would anyway have been familiar. I am not persuaded that his decision was irrational, or that he did not correctly address himself to the matters relevant to the exercise of his discretion. For this court to set aside the judge's order and to re-determine the question of costs would in my judgment be a step too far. I would, therefore, dismiss this ground of appeal.

Disposition

51. I would therefore dispose of each of grounds 2, 5, 6 and 7 in the way I have described. I express my hope that in due course the parties will also be able to present us with a basis upon which the court can approve the disposal of ground 1.

Lord Justice Ryder :

52. I agree.