Bray v Bishop
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Longmore |
| Judgment Date | 19 June 2009 |
| Neutral Citation | [2009] EWCA Civ 768 |
| Docket Number | Case No: B2/2008/3084 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2009 |
[2009] EWCA Civ 768
Lord Justice Longmore and
Lord Justice Lloyd
Case No: B2/2008/3084
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE HARRINGTON)
Mr A Troup (instructed by Messrs Maitland Walker) appeared on behalf of the Appellant.
Mr C Jones (instructed by Messrs Penleys LLP) appeared on behalf of the Respondent.
(As Approved)
Lord Justice Lloyd:
This is a building dispute which went to trial in July 2007 on an occasion that was intended to be the substantive trial but which could not proceed in that way for a number of reasons. Instead of that, the judge's time, over some two days with a reserved judgment, was devoted to deciding a number of factual issues between the parties, the resolution of which was, no doubt rightly, thought to be constructive in terms of narrowing the issues. The judge handed down his judgment in September 2007 and gave directions with a view to a hearing, which was eventually to come on in December 2008. The proceedings were in the Gloucester County Court and the judge was His Honour Judge Harrington.
The matter came on, or was about to come on, in December 2008; but at that stage, with the benefit of expert reports which had been adduced at a later stage than perhaps had been desirable, the parties were able to settle the dispute, except that they could not resolve the issue of costs. The judge was asked to decide that issue and he did. He ordered the claimant to pay the defendants' costs. With permission granted by Stanley Burnton LJ, the claimant appeals from that order.
The problems facing a judge who is asked to decide a question of costs when all other issues have been settled have been described in a number of cases, to which we drew the attention of counsel: Brawley v Marczynski [2002] EWCA Civ 756, also found at [2003] 1 WLR 813; then BCT Software Solutions v C Brewer & Sons [2003] EWCA Civ 939; and thirdly, Venture Finance Plc v Mead & Ors [2005] EWCA Civ 325. In Brawley my lord, Longmore LJ, at paragraph 21, endorsed principles set out in a judicial review case in 2000 by Scott Baker J, as he then was, which include these two of particular relevance to this case:
“(iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.”
In BCT Software Mummery LJ at paragraphs 4 through to 9, and Chadwick LJ at paragraphs 21 through to 27, urged caution on judges who were invited to decide questions of costs in these circumstances. I will read particularly paragraphs 5 and 6, but all of the passages that I have mentioned are valuable:
“5. There are, however, more complex cases (and this is such a case) in which it will be difficult for the judge to decide who is the winner and who is the loser without embarking on a course, which comes close to conducting a trial of the action that the parties intended to avoid by their compromise. The truth often is that neither side has won or lost. It is also true that a considerable number of cases are settled by the parties in the belief that the terms of settlement represent a victory, or at least a vindication of their position, in the litigation, or in the belief that they have not lost; or, at the very least, in the belief that the other side has not won.
6. In my judgment, in all but straightforward compromises, which are, in general, unlikely to involve him, a judge is entitled to say to the parties 'If you have not reached an agreement on costs, you have not settled your dispute. The action must go on, unless your compromise covers costs as well.'”
In BCT the court proceeded on the footing that an appeal against an order made by a judge in these circumstances should not be allowed unless the appellant could show manifest injustice. In such a case the well known difficulties facing an appellant on an issue of costs are all the greater. The three cases that I have mentioned are all to be found referred to, with passages or summaries set out, in the White Book at paragraph 44.3.6. They may not have come sufficiently to counsel's attention, and it seems to me that it might be more useful for practitioners if the treatment of this point in that part of the notes to the White Book were presented in a more focussed way.
In the present proceedings the claimant, the builder, claimed some £13,000 and the defendants, the employers, denied that claim, alleged an overpayment of £36,000 and counterclaimed for that and other sums, amounting in all to about £52,000. At the trial in July 2007 twenty-one identified issues were for decision, although two of those overlapped and some had by then been agreed. Of those in dispute, issues numbers 3 and 21 were decided in favour of the defendants; but 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 in favour of the claimant. I note that on issue 15 the defendants' case involved, as they realised, an allegation of dishonesty against the claimant which was unsuccessful.
When the judge handed down his judgment on the points debated in July 2007, the judge ordered the defendants to pay the claimant £2,000 on account of the costs of the trial and he reserved the balance of the costs. We were told that the £2,000 was quantified because it represented the claimant's counsel's brief fee.
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