England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2015] EWCA Civ 283

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		Neutral Citation Number: [2015] EWCA Civ 283
		Case No: B2/2013/2677

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
HHJ ROBINSON
1SE00423

Royal Courts of Justice
Strand, London, WC2A 2LL

25/03/2015

B e f o r e :

LADY JUSTICE ARDEN
LORD JUSTICE CHRISTOPHER CLARKE
and
LORD JUSTICE BEAN
____________________

Between:

	Coope and Others	Appellant
	- and -
	Ward and Another	Respondent

____________________

Ms Jessica Brooke (instructed by Best Solicitors) for the Appellant
Ms Brie Stevens-Hoare and Ms Morayo Fagborun Bennett (instructed by Bar Pro Bono Unit) for the Respondent
Hearing dates : 11th – 14th November 2014
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Christopher Clarke:

We now have to deal with the consequential issues.

The case of the Respondents ("the Wards") was that they had obtained an easement of support by the Armstead Wall which had been interfered with by the removal by the Appellants ("the Coopes") of outbuildings which had been established along the Armstead Wall and provided support for it. They failed at first instance to establish such an easement or that the Coopes had interfered in any way with the support provided by the Armstead Wall.

The Wards succeeded at first instance in establishing that the measured duty of care owed to them entitled them to what amounted to some pretty modest relief against the Coopes. On appeal the Coopes failed to show that no duty of care arose at all; but we have decided that the judge was wrong to impose upon them any obligation to make a financial contribution - for the reasons set out at paras [76] – [79] of my judgment. In those circumstances the Wards have, in practical terms, failed to recover anything of value. But the question of whether the Coopes owed any duty of care at all was an issue which occupied much of the appeal; and the fact that such a duty of care was held to exist may not be wholly without utility.

The Court rejected ground 2 of the appeal (that the Wards were not permitted to a claim for contribution when the pleaded claim had been for the whole costs) and ground 3 (that it was wrong to dismiss the counterclaim, which was for an order requiring the Coopes to ensure that 41 Orchard Lane and the Orchard Lane Wall were properly supported and to reinstate the Armstead Wall). Ground 2 involved practically no time at all and was rendered moot by our finding that no contribution was due anyway. As to ground 3 the counterclaim, although referred to in the Grounds of Appeal, was not in fact referred to in the Appellant's notice and occupied practically no time, and involved practically no costs, in the Appeal.

Taking all these matters into account, and particularly those set out in [3] above, I would order the Wards to pay the Coopes 85% of the latter's costs of the appeal.

As to the costs at first instance, the Wards failed at trial to establish the easement of support which they claimed. Most of the evidence in the 5 day trial focused on that claim and, in particular, the date from which the Armstead Wall performed a supporting function in relation to the Wards' land, and the additions thereto, and thus when time started to run for the purposes of prescription; and when the outbuildings were removed by the Coopes.

The Wards did, however, succeed in defeating the counterclaim. It seems to me that that will have involved very limited time and cost. The counterclaim was included by way of amendment to the pleadings made at trial. There was no pleaded response. It scarcely featured in the skeletons, occupying 4 paragraphs in that of the Wards ([29] – [32]) and was barely mentioned in that of the Coopes (it seems to be, largely, in [41]). The evidence of two witnesses dealt, in a small part of their evidence, with whether Mr Ward had been involved in the build up of the wall in 1990/1991.

The parties draw attention to their offers to settle. On 3 July 2012 the Coopes made the Wards a Part 36 offer to consent to the Wards obtaining a right of support on the footing that the Wards were responsible for the maintenance of it and ensured that the Armstead Road wall (on the Coopes' land) and right of support was in a good standard of repair. The offer was on the basis that the Wards paid the Coopes' costs. That offer involved erecting the Armstead Wall (on the Coopes land) at the Wards' expense. It is similar in practical effect (ignoring costs) to the position now reached by the Wards who are going to have to build (but on their land) at their expense. The Wards did not accept this offer nor suggest making any contribution to the Coopes' costs.

On 16 November 2012 the Wards offered to incur the full cost of rebuilding the wall on their land if the Coopes would remove the shed/rubble and allow the Wards and their contractors all necessary access. This was on the basis that each party should bear its own costs. Subject to the question of costs, this is, for practical purposes, very similar to the result produced by the appeal. The Wards will have to rebuild on their land without financial contribution from the Coopes, although if, which the court has not decided, the Coopes do not have to bear the cost of removing rubble the offer will have been less favourable to the Wards than the appeal result. That is, however, of limited relevance. The Coopes have never denied the Wards access to their land to carry out the work, or refused to remove the rubble and the shed from their land.

So the offer made would, if accepted, have, for practical purposes produced the same outcome as has resulted from the appeal. But it made no provision for the Coopes' costs, which stood, just after the date of the offer, at £ 18,828 (unassessed). Given that the Coopes had been facing and responding to a claim for (i) a declaration as to an easement of support; (ii) an injunction requiring them to reinstate the Armstead Wall; and (iii) damages in respect of the remedial work required to the Orchard Lane wall, it was not, in my view reasonable to expect the Coopes to accept an offer which made no provision for their costs. At the same time the Coopes do not appear to have made any response to this offer or expresses any preparedness to settle for payment of a proportion of their costs. Had they done so there is a reasonable chance that the very large subsequent expenditure of costs could have been avoided.

In those circumstances I think that we should order the Wards to pay 85% of the Coopes' costs at first instance, that deduction being intended to take account of the matters referred to in [7] above and, also, the failure of the Coopes to respond to the 16 November 2012 offer in any manner that might have led to a settlement.

The costs will have to be assessed on the standard scale. The costs appear to us to be very substantial. It will be for the costs judge to determine, having regard to all relevant considerations, including proportionality, to what extent they are properly recoverable.

I would order the Wards to pay the Coopes £ 40,000 on account of costs within 21 days of our order.

Lord Justice Bean:

I agree.

Lady Justice Arden:

I agree.