Derrick Barr and Others v Biffa Waste Services Ltd [no 4]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 19 April 2011 |
| Neutral Citation | [2011] EWHC 1107 (TCC) |
| Date | 19 April 2011 |
| Docket Number | Case No: HT-09-165 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2011] EWHC 1107 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Coulson
Case No: HT-09-165
Mr Nigel Cooksley QC (instructed by Hugh James Solicitors) for the Claimants
Mr Ian Croxford QC (instructed by Nabarro LLP) for the Defendant
Hearing dates: 19 th April 2011
INTRODUCTION
Today I handed down the principal judgment in this case, neutral citation number [2011] EWHC 1003 (TCC). In the aftermath of that judgment, there are a series of further issues between the parties which I deal with below under the following heads: appeal; liability for costs; basis of assessment of costs; and interim payment on account of costs.
APPEAL
In summary, the outcome of the trial in this case was that the 30 lead claimants lost their nuisance claims on a point of principle/law, because I concluded that the operation of the Westmill 2 landfill site, in accordance with the terms of the EA permit, amounted to a reasonable user of land. In addition, save for two claims, one by Mr Hobbs and one by Mr Clark for the year 2005 only, the claims also failed on the facts, the claimants having failed to demonstrate that their experiences took them beyond the appropriate threshold or starting point for any consideration of 'give and take'/reasonable user. The claimants have indicated that they may wish to appeal the judgment, although they are not yet in a position to say either way.
The claimants' first application, therefore, is for an extension of time to file an Appellant's Notice pursuant to CPR 52.4(2)(a). It is submitted that, because there are 152 claimants, the decision-making process is unwieldy, and that further time is required to arrange a meeting with the steering group and to discuss with them the ramifications of the judgment. The point is also made that the Easter holiday period is due to start later this week. An extension of time for the filing of a Notice is sought until 27th May 2011.
In other circumstances, I would have been inclined to treat the claimants' application with some sympathy, but on the facts here I have concluded that any difficulties that the claimants may now face are of their own making. That is because, on 8th March 2011, my clerk provided the parties with a detailed timetable for the draft judgment and the checking process leading up to the hearing today, when the final version of the judgment would be handed down. In her email she said that the draft judgment would be provided on Monday, 11th April. In fact, it was sent out on Friday, 8th April. One of the main reasons for giving such advance warning of the draft was to allow the claimants the opportunity to arrange a meeting to discuss the judgment and its effect during the course of last week, that is to say the week starting 11th April.
I understand from Mr Cooksley that, despite the notice given by my clerk, no such meeting was arranged. I am unaware of any explanation for that failure. In those circumstances, it seems to me that I ought not to allow the claimants the indulgence of further time to consider whether or not they want to appeal. The entirety of CPR 52 is based on a clear policy in favour of speed and finality and, having given the claimants the opportunity to decide what they wanted to do, it would be contrary to that policy if I were to allow them any further time, merely because they failed to take the opportunity given to them. Furthermore, I note that the time limits under discussion are essentially those of the Court of Appeal, and it is not appropriate for the judge at first instance to grant lengthy extensions of time, in circumstances where the Court of Appeal may in any event form a different view about the appeal and its prospects of success.
In those circumstances, I invited Mr Cooksley to make an application for permission to appeal to me, the usual first stage in the appeal process. He declined to do so, saying that it was 'unnecessary'. It seems to me that, in those circumstances, I should explain very briefly why, had any such application been made, I would have refused it.
As to the point of principle/law, the claimants' case, that the operation of the site in accordance with the permit was itself a nuisance, was and always seemed to me to be contrary to common sense, general principle, the terms of the environmental legislation, the modern nuisance cases and the terms of the permit itself. Permission to appeal, of course, may be given wherever there is a real prospect of success; in other words, where there is a realistic (as opposed to a fanciful) prospect of success: see Swain v Hillman [2001] 1 All ER 91. In my view, the claimants' prospects of success on the point of principle do not come anywhere near meeting that test.
As to the threshold debate, I would not have granted permission in relation to that aspect of the judgment for two separate reasons. First, this part of the judgment is based on a series of findings of fact which I have made. The burden on a prospective appellant seeking to appeal such findings of fact made by a TCC Judge is hard to dislodge: see Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd [2005] EWCA Civ 894. May LJ said in that case:
"The reason again is obvious. The more complicated and technical the facts, the longer and more expensive would be this court's enquiry, whether by review or re-hearing, and the more disproportionate would be the whole exercise for the parties and the court alike."
Secondly, as set out in my judgment, although the threshold point was clearly important in this case, the claimants expressly chose to make no submissions on it at all. I have had to identify what seemed to me to be an appropriate starting point/threshold, with assistance only from the defendant. It would neither be fair nor just to allow the claimants to complain to the Court of Appeal about a decision-making process in which they deliberately chose to play no part.
Accordingly, if the Claimants had made an application for permission to appeal, I would have refused it for the reasons that I have given.
LIABILITY FOR COSTS
a) The Successful Party
CPR 44.3 provides as follows:
"(1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).
(8) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed."
It is also necessary to consider CPR Part 36(14), which provides as follows:
" Costs consequences following judgment
(1) This rule applies where upon judgment being entered –
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
(2) Subject to paragraph (6), where rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to –
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –
…
(b) his costs on the indemnity basis from the date on which the relevant period expired …
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court...
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