England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ BAILEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th May 2014

Mr Justice Akenhead:

The Costs

1. Having handed down judgment in this matter on 16 April 2014, in favour of Mr Dillard, the Appellant, I left over costs to be the subject matter of written representations. I have received those from Counsel for which I am grateful.
2. It is accepted that Mr Dillard should have the costs of the appeal but Mr de Waal QC argues that they should be reduced by reason of his conduct or they should be reserved to the conclusion of the case. There has been nothing reprehensible or wrong in connection with the conduct either of Mr Dillard or of those advising him in connection with the appeal. F&C fought the appeal and has lost and should therefore in principle pay the costs of and occasioned by the appeal.
3. Similar considerations apply to the hearing below on the application by F&C to strike out this part of Mr Dillard's "appeal". It was an application which, as this appeal has demonstrated, need not have been made and ultimately has been shown to be unjustified.
4. Mr de Waal QC prays in aid complaints to the effect that Mr Dillard has not engaged with F&C with a view to resolving the underlying dispute between them. Thus, it is said that on 19 April 2013 F&C's solicitors, who had no wish to litigate, would go along with the party wall award surveyors deal with the dispute and issue another award and that, although belatedly details of the further loss and damage were provided shortly before the hearing before HHJ Bailey, there was said to be a lack of response or engagement to enable F&F to inspect Mr Dillard's property.
5. In my judgment, it was not unreasonable of Mr Dillard not to accept the suggestion that the party wall surveyors get involved again; this is because my judgment demonstrates that they have no jurisdiction to do so.
6. What should be focussed on is simply the costs of and occasioned by the appeal and by the strike-out application. If there has been poor conduct in terms of engagement by Mr Dillard with suggestions as to alternative dispute resolution or other alleged lack of cooperation, that legitimately goes to a consideration of costs overall. It does not enable or justify F&C embarking with impunity on a tactical foray, albeit reasonably arguable, which has proved to be unsuccessful.
7. It follows that F&C should pay on a standard basis the costs of and occasioned both by this appeal and the strike-out application before HHJ Bailey. There is no obvious justification to postpone assessment or not to make a summary assessment of the appeal costs.
8. Mr Dillard's costs summary for the appeal comes to £35,360.51, including VAT. My immediate and considered reaction to the size of this bill was and remains that it is disproportionate to what was in issue. Although listed for one day, it was never going to last a day (it took about 2 hours). It involved little more than considering a short Addendum Award of the surveyors, the Act (and only a few sections of that) and the Deed which was a short document. F&C's bill was £15,547.08.
9. Mr de Waal QC identifies a number of challenges and Mr Gaunt QC accepts that there should be a reduction of about £8,000.The main challenge goes to the substantial additional cost of deploying a senior silk in place of the experienced Junior Counsel who appeared below. In reality, this mostly goes to the £12,500 appeal brief of Mr Gaunt, compared with Mr de Waal QC's £4,500. In my judgment, I do not consider that it is reasonable that F&C should pay for the whole of this large fee for a 2 hour plus hearing. I therefore reduce it to £6,000. That leaves £21,655 allowing for the points conceded by Mr Gaunt QC. That is proportionate and reflects that Mr Dillard's solicitors had to make the running to set up the appeal.
10. I therefore summarily assess the costs of the appeal at £21,655 inclusive of VAT and order that they be paid within 14 days of this judgment being handed down. The costs of the application below should be Mr Dillard's in any event, to be assessed if not agreed on a standard basis.