Aspin v Metric Group Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Wall,Mr Justice Blackburne |
| Judgment Date | 24 July 2007 |
| Neutral Citation | [2007] EWCA Civ 922 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2007 |
| Docket Number | Case No: A3/2006/2611 |
[2007] EWCA Civ 922
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
CHANCERY DIVISION
(HIS HONOUR JUDGE WYN WILLIAMS QC
SITTING AS A HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Wall and
Mr Justice Blackburne
Case No: A3/2006/2611
Mr R Lemon (instructed by Messrs Clarke and Company) appeared on behalf of the Appellant.
Mr T Kibling (instructed by Messrs Fullagarbrooks) appeared on behalf of the Respondent.
This is an appeal from an order as to costs made on 31 October 2006 by HHJ Wyn Williams QC, as he then was, sitting as a Deputy Judge of the High Court in the Cardiff District Registry of the Chancery Division, in proceedings brought by the appellant, Mr Kevin Aspin, against his former employers, Metric Group Limited. Permission to appeal to this court was granted by Sir Henry Brooke on 9 February 2007.
From 22 May 1995 until 10 July 2001 the appellant, Mr Aspin, was employed by the defendant company, first as business development manager of its Almex Transport Division, and latterly (from December 1999) as sales director involved in the running of its wider business. That employment was terminated summarily on 9 July 2001 with effect from the following day. The reason given for the termination, in a subsequent letter dated 20 July 2001, was that Mr Aspin had been dismissed for gross misconduct.
Mr Aspin commenced proceedings in the Employment Tribunal seeking an award in respect of unfair dismissal wrongful dismissal, and breach of contract. Although, at first, the company maintained its stance that the claimant had been dismissed for gross misconduct that allegation was withdrawn at a hearing in those employment proceedings on 7 February 2002; and on 3 October 2002 the company was granted permission to amend its notice of appearance by substituting redundancy as the reason for dismissal.
The present proceedings were commenced shortly thereafter, on or about 8 November 2002. In these proceedings Mr Aspin claimed damages for breach of contract, unpaid commission and a quantum meruit arising out of his terms of employment. In addition he claimed damages in respect of the prejudice which (as he said) he had suffered in connection with his attempts to obtain re-employment by reason of the allegation that he had been dismissed for gross misconduct. He sought an account of sums alleged to be due in respect of commission, interest for late payment of other monies, pension contributions and unpaid expenses.
In a letter dated 3 October 2002—that is to say shortly before the commencement of these proceedings—and written in response to an offer of settlement at a figure of some £50,000, Mr Aspin (in rejecting that offer in strong terms) put his claim at “anything up to £400,000 of which at least £170,000 is without question”. Following the rejection of its offer, the company made an unconditional payment of £25,457 in respect of statutory redundancy pay, payment in lieu of contractual notice and pension losses. On 10 April 2003 the company made payment into court in the sum of £25,000; of which £3,924-odd was stated to be in respect of interest.
The proceedings came before HHJ Price QC, sitting in the Queen's Bench Division of the High Court, for trial on liability. In a judgment delivered on 11 March 2004 ( [2004] EWHC 1265 (QB)), HHJ Price rejected one of the elements in the claimed commission—that is to say, a claim that Mr Aspin was entitled to commission on what were described as large orders (those being orders over £500,000) in addition to the commission which he had already received; he accepted that Mr Aspin was entitled, in addition to commission on sales, to a percentage of gross margin (which the judge equated to an additional 1 per cent on sales); but he went on to hold that that arrangement for commission on gross margin had ended in November 1995. The judge rejected Mr Aspin's claim to bonuses dependent on the company's performance; and, importantly, he rejected the claim for damages in respect of prejudice said to have been suffered by Mr Aspin in connection with his attempts to obtain re-employment. We do not have before us the order which HHJ Price made, following his judgment on 11 March 2004, but it is reasonable to conclude that he must have directed that judgment be entered for the claimant on the heads on which he had succeeded—such damages to be assessed—and he must have directed that the costs of the trial be reserved to the judge dealing with the assessment of damages.
HHJ Price had anticipated that questions of quantum of damages, following from the findings on liability which he had made, would be capable of being agreed, and would be agreed, between the parties. But that was not to be. The matter came back to the court for assessment of damages. It came before HHJ Wyn Williams, sitting in the Chancery Division in 2005. He handed down a written judgment on 16 December 2005. The sums claimed by Mr Aspin had been set out in a schedule. Most of those sums, other than the amount of commission on sales during the notice period, had been agreed, or were agreed, in the course of the hearing. There remained for decision by HHJ Wyn Williams on that occasion an issue as to the date upon which commission on sales was earned. The judge decided that issue in favour of the claimant. He rejected claims to commission, or to damages in respect of the loss of a chance of earning commission, in respect of certain contracts which were concluded after the expiry of the six-month notice period; but he accepted that loss of a chance for damages in respect of the commission on one such contract (which he described as “the Greek contract”). The judge returned to that issue in the supplementary judgment which he delivered in April 2006. He accepted, in his judgment, that there was in fact a second Greek contract in relation to which the claimant had lost a chance to earn commission.
The effect of the findings as to quantum which were made by HHJ Wynn-Williams was set out in paragraphs 1 to 3 of the order which was eventually made on 31 October 2006. The paragraphs are in these terms:
“1. There be judgment for the claimant in the claim in the sum of £31,152.43 together with interest thereon of £12,245.66 a total of £43,388.09;
2. There be judgment for the claimant [Metric Group Limited] in the counterclaim on the counterclaim in the sum of £1,195.50 together with interest thereon of £275.89 a total of £1,471.39 which would be set off against the claim;
3. The net total of the judgment for the claimant against the defendant including interest and after setting off counterclaim and interest shall be £41,926.70.”
Paragraph 4 of the order provides that part of that sum an amount equal to £7,526-odd be deducted and paid to the Inland Revenue under the PAYE Regulations 1993. The basis for that deduction had been explained by the judge in his judgment of April 2006.
The matter came back to HHJ Wyn Williams on 31 October 2006 so that he could deal with the outstanding questions of costs. The figures to which I here just referred had, by then, been agreed between the parties. The judge referred to them in the first two paragraphs of the judgment which he delivered on 31 October 2006. The order for costs which the judge made is found in paragraph 8 of the order of 31 October 2006:
“There shall be no order for costs as between the parties up to and including the date when HHJ Philip Price QC delivered judgment. Thereafter the defendant shall pay to the claimant his costs to be the subject of a detailed assessment on the standard basis if not agreed.”
It is from the first sentence of that paragraph that Mr Aspin appeals: that is to say, he appeals from the order that there be no order as to costs incurred up to and including 11 March 2004, the date of HHJ Price's judgment. The appellant has had his costs thereafter; and there is no cross-appeal from that part of the order.
Orders for costs are peculiarly in the discretion of the trial judge. An appellate court does not interfere on the basis that it thinks that it might have made a different order if it had been exercising the discretion that is entrusted by statute to the trial judge: see the observations at paragraph 22 of my judgment in this Court in Johnsey Estates 1990 Limited v Secretary of State for Environment [2001] EWCA Civ 353. Indeed, as I observed, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge's exercise of his discretion is flawed.
It is necessary therefore to examine the reasons given by the judge for his conclusion that, in effect, the parties should bear their own costs down to the conclusion of the trial on liability. At paragraph 4 of his costs judgment, delivered on 31 October 2006, HHJ Wyn Williams observed, correctly, that, on the basis of the findings as to liability that had been made by HHJ Price, Mr Aspin had recovered more than the amount paid into court on 10 April 2003. So there was no reason to deprive Mr Aspin of any costs on the basis that he had failed to beat the payment in. At paragraph 5 of the judgment HHJ Wyn Williams pointed out, again correctly, that the effect of the judgment of HHJ Price was that claims for substantial monetary value had been rejected in March 2004.
A summary of those claims was conveniently set out at paragraph 79 of the submissions which had been put before HHJ Wyn...
To continue reading
Request your trial
-
Cash Plus Ltd v Madam A
...23/11/99 ). Where no reasons are given an appellate tribunal is entitled to consider the matter afresh (see Aspin v Metric Group Ltd [2007] EWCA Civ 922 ). 101 In departing from the principle that is set out in rule 64.6(1) that the unsuccessful party must pay the successful party's costs, ......
-
Krysia Maritime Inc. v Intership Ltd [QBD (Admiralty)]
...make a summary assessment of the claimants' costs, but as they have now settled this issue there is no need to do so. 1 See: Aspin v Metric Group Ltd (2007) [2007] EWCA Civ 922 at paragraph 25. 2 [1937] P 93; [1936] 56 Ll.L.Rep 149. 3 See page 110 of the Probate report. 4 [1952] 1 Lloyd's R......
-
Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 3)
...this case one of the grounds upon which K failed was an allegation of fraud. That issue had given rise to substantial costs. 62 Aspin v Metric Group Limited [2007] EWCA Civ 922 was a claim for damages and outstanding remuneration brought by a sales director against his former employers. ......
-
F & C Alternative Investments (Holdings) Ltd v Barthelemy and another (No 3)
...expect to pay the costs of that issue to the party who has succeeded on that issue". In a subsequent case, Aspin v Metric Group Ltd [2007] EWCA Civ 922, Chadwick LJ referred, on the issues based approach, to circumstances whereby an (overall) successful party may be deprived of the costs of......