Dr Brian May and Another v Wavell Group Plc and Another
| Jurisdiction | England & Wales |
| Judge | Master Rowley |
| Judgment Date | 16 June 2016 |
| Neutral Citation | [2016] EWHC B16 (Costs) |
| Court | Senior Court Costs Office |
| Docket Number | Case No: JR 1504587 |
| Date | 16 June 2016 |
[2016] EWHC B16 (Costs)
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Master Rowley
Case No: JR 1504587
Oliver Jones (instructed by Simon Farrell QC) for the Claimants
Jamie Carpenter (instructed by Boodle Hatfield LLP) for the First Defendant
Hearing dates: 12 & 13 May 2016
Judgment Approved
The claimants brought proceedings against the defendants in the County Court for private nuisance. The claimants accepted the defendants' Part 36 Offer of £25,000 prior to the defendants entering their defences. A deemed costs order in accordance with CPR 44.9 resulted from that acceptance and the claimant commenced detailed assessment proceedings as a result. The claimants' bill came to £208,236.54. All of the work post dates 1 April 2013 and the defendants say that the claimants' costs should be reduced to a proportionate level in accordance with the new test of proportionality. Given the novelty of that test, I reserved judgment in case either of the parties wished to take matters further.
The claimants' costs are to be assessed on the standard basis. CPR 44.3(2) provides:
(2) Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
CPR 44.3 (2)(a) gives rise essentially to a two-stage test. First, an assessment of the costs which are reasonable has to be carried out on an item by item basis and a calculation of the aggregate of those reasonable sums made. In this case that figure is £99,655.74.
The extent of the reduction in the bill as originally claimed was undoubtedly due in part to the method of representation adopted by the claimants. They instructed Simon Farrell QC on their behalf. Mr Farrell is authorised by the Bar Standards Board to conduct litigation. Consequently no firm of solicitors were instructed and Mr Farrell utilised the services of other barristers and a solicitor as required. The Bar Standards Board had only begun to authorise barristers to conduct litigation shortly before Mr Farrell was instructed by the claimants. Inevitably therefore, there was some novelty in conducting litigation for Mr Farrell and his team. Nevertheless, I am satisfied that the sum that I have ultimately allowed as being a reasonable sum is so whether or not it had been incurred by a firm of solicitors or by direct access counsel. As Mr Carpenter, counsel for the defendants said, and I accept, the reasonableness and proportionality of the recoverable costs cannot depend upon the method of representation. I have raised the point merely to provide some reasoning for the significant level of reduction on assessment from the original sum claimed.
The second stage of the test required by CPR 44.3(2)(a) is to consider whether the reasonable sum allowed is also a proportionate sum. In doing so, the court must have regard to CPR 44.3(5) which provides:
(5) Costs incurred are proportionate if they bear a reasonable relationship to –
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issue in the proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the paying party; and
(e) any wider factors involved in the proceedings, such as reputation or public importance.
The sums in issue in the proceedings
The defendant's case is that the claim is worth the sum for which it settled i.e. £25,000. This was the defendants' first offer and there was no attempt by the claimants to negotiate any higher figure before it was accepted. There is nothing before the court to suggest that any other figure ought to be preferred as to the sum that was in issue in these proceedings. Mr Carpenter was prepared to accept that there may be cases where the claimant reasonably expected a certain level of damages to be achieved but for one reason or another had to settle for rather less, but this was not one of those cases. There was nothing in the narrative to the bill, the replies to the points of dispute or the skeleton served by Mr Jones, the cost lawyer representing the claimants, which suggested the claim was ever worth more than £25,000.
According to Mr Carpenter's analysis of the merits of the claim, it could never have been of any significant value in any event. A meeting prior to the involvement of Mr Farrell had taken place between the first claimant, his acoustic expert, and contractors for the defendants. A regime of noise reducing methods had been implemented which inevitably restricted the potential value of the claim. In Mr Carpenter's submission, the value of the claim could only be for the noise generated over and above that which was reasonably generated in undertaking the works for which planning permission had been given.
Mr Sareen, who was one of the barristers to form part of Mr Farrell's team in this case, made submissions on the issue of proportionality in addition to those of Mr Jones. He did so in line with points of response that he had drafted during the course of the detailed assessment. He did not accept Mr Carpenter's argument that the extent of damages recovered could only be for the noise in excess of the reasonable noise generated by the works. That was only the second limb referred to in the case of Andreae v Selfridge & Co Ltd [1938] Ch 1.
The claimants had also pleaded their case under the first limb relating to the works carried out being a non-natural user of the land. As such, the nuisance would involve all of the noise et cetera created by the defendants and their contractors. Mr Sareen accepted that this was an uncertain claim given that there was little or no case law since Andreae which would determine whether or not a two-storey basement covering essentially the entire area of the garden in a residential property would be considered a natural use of that property in the 21 st century. But if it was successful, then the damages would have been significantly higher than the settlement sum.
In his skeleton argument, Mr Sareen set out figures relating to the value of the properties involved and, based on a percentage yield, the rental figures that could be produced for the period during which the nuisance had occurred. I have not set out the specific figures for two reasons. Firstly, and with no criticism intended, they were rough and ready figures which, when added to by additional assumptions, proved to be fairly elastic. When Mr Carpenter responded to those submissions, the figures he extrapolated, again on the hoof, did not vary significantly from the £25,000 figure which was ultimately accepted.
The second reason is that the loss of rental value, whilst theoretically a possible measure of damages, does not seem to have weighed heavily in the minds of the claimants and their advisers when considering the value of this case. Having read the papers lodged for the detailed assessment, it seems to me that the figure of £25,000 is one that was well within the contemplation of the claimants as being an acceptable figure and it is striking that there is nothing in writing at the time of settlement regarding advice as to whether or not the claimants could have expected to receive more if they had pressed on to a trial.
There is also nothing that I have seen relating to the substantially higher damages potentially recoverable under the first limb of Andreae. The first claimant in particular clearly feels very strongly about the matters underlying proceedings and if there was any significant prospect of the entire works being halted, it seems to me that claim would have been pursued vigorously. In fact, the existence of some damages being received rather than the quantum of them seems to have been of more importance to the first claimant at least. For the purposes of considering the factors in 44.3(5), I take the view that the sum of £25,000 reflects the sums in issue in the proceedings.
The value of any non-monetary relief in issue in the proceedings
It is common in private nuisance proceedings for consideration to be given to injunctive relief in addition to damages. Here, the claimants clearly considered the possibility of obtaining an interim injunction but concluded by the time that proceedings were commenced that this was not likely to succeed. Nevertheless, the possibility of an injunction remained in the prayer in case further issues arose prior to the final hearing of the claim.
Mr Carpenter argued that the injunctive relief ought to be entirely discounted on the basis that it could only ever have been contemplated whilst the piling work was undertaken. That had finished before court proceedings were brought and the claimants' own expert evidence showed that thereafter there was no regular or lengthy intrusive noise created by the works undertaken. Consequently neither an interim nor a permanent injunction could realistically have been sought.
However, if I was against the first defendant on that argument, Mr Carpenter submitted that I should conclude that such value as an injunction had was included within the Part 36 Offer in any event. Therefore, on either basis I should not allow anything for the non-monetary relief over and above the damages obtained. Mr Carpenter referred to a letter from Mr Farrell in the proceedings which referred to damages being...
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