Parkes v Martin
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lady Justice Smith |
| Judgment Date | 09 July 2009 |
| Neutral Citation | [2009] EWCA Civ 883 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2008/3003 |
| Date | 09 July 2009 |
[2009] EWCA Civ 883
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(His Honour Judge Geddes)
Before: Lady Justice Smith
and
Lord Justice Rimer
Case No: B3/2008/3003
Ms J Ayling (instructed by New Law) appeared on behalf of the Appellant.
Mr S Friday (instructed by DWF Solicitors) appeared on behalf of the Respondent.
Lord Justice Rimer:
This is an appeal by the claimant, Christopher Parkes, against a costs order made by HHJ Geddes on 13 November 2008 in the Worcester County Court at the conclusion of a trial on liability. The defendant, who is the respondent before us, is Laurence Martin. The relevant facts can be stated shortly.
At about 4.15 am on 7 December 2006 Mr Parkes was driving his Citroen car along the A41 between Sandford and Market Drayton. It was a dark and very wet night. The car hit a large pool of water on Mr Parkes' side of the road. Mr Parkes lost control, the car turned onto its side and ended up partially on the other side of the road, with the underside of the car facing the oncoming traffic. As Mr Parkes was attempting to climb out of the driver's window, a lorry driven by Mr Martin coming from the other direction collided with the Citroen, the force of the collision pushing it some way down the road. The Citroen was a write-off and Mr Parkes suffered serious injury. The lorry was also damaged and Mr Martin was also injured, although very much less seriously than Mr Parkes.
On 7 February 2008 Mr Parkes commenced a claim for damages for negligence against Mr Martin. Mr Martin's defence denied negligence on his part and asserted that Mr Parkes's negligent driving, manifested by his loss of control of the car, was the cause of the accident. The trial on the issue of liability alone came before HHJ Geddes on 13 November 2008 and was dispatched with efficiency in the course of the morning. Each of the parties gave oral evidence and was cross-examined, there were brief submissions, and the judge then gave judgment.
The judge found that Mr Parkes was driving faster than the 50 mph he had claimed. He also found that there was no doubt that Mr Parkes was negligent in failing to keep a proper lookout and so not seeing the pool of water. The collision with that pool caused the loss of control and resulted in the Citroen presenting the hazard it did to other road users.
Mr Martin's evidence was that he was travelling at about 40 mph, the speed limit applicable to lorries on the road, but the judge found that that was also too fast for the road and driving conditions with which Mr Martin was faced that morning. The judge found that Mr Martin was also partly to blame for the accident. He found that if he had been driving at an appropriate speed and had kept a proper lookout he should have seen the Citroen and should have been able to stop in time without hitting it. The judge's conclusion was that Mr Parkes was 65% to blame for the accident and Mr Parkes was 35% to blame. Put the other way, he found for Mr Martin on liability but reduced his claim by 65% for contributory negligence.
At the conclusion of the judge's judgment, counsel for Mr Parkes, who is not counsel before us on this appeal, then asked the judge for Mr Parkes's costs. No costs schedule had been adduced and she was, I infer, going to ask for a detailed assessment of any costs ordered. There followed this exchange with Mr Friday, being counsel for Mr Martin, who has also appeared before us:
“JUDGE GEDDES: Should costs not be divided in the same proportions?
MR FRIDAY: Given the fact that the Claimant is more to blame than the Defendant I invite your Honour to consider that. It is right that there is not in this action a counterclaim, but there is a claim the Defendant brought that stands by the wayside. My learned friend will quite properly say that there is no counterclaim in this action, so therefore she has succeeded, albeit that she has only succeeded to the extent of 35% and a win is a win, and I can see the merit in that. It is also right to say the Defendant had made no offers because the Defendant's case was that liability was denied. The Claimant made two offers, one of 75% in his favour and one of 50/50, both of which were rejected and both of which were justifiably rejected.
I invite your Honour to make apportioned costs on liability, notwithstanding those facts because the greater degree of liability is laid on the Claimant. It is a matter for your Honour.
JUDGE GEDDES: Ordinarily the rules provide that the winner would get her costs or his costs. But I think in a case of this kind (bearing in mind the provisions of CPR 44.34) justice is definitely best done by awarding costs in the same proportion as liability. Therefore it seems to me the Defendant should pay 35% of the Claimant's costs.
MR FRIDAY: I am content, of course, for that to be limited to the costs of liability.
JUDGE GEDDES: Yes, that is on liability.
MR FRIDAY: I would not be so bold as to enlarge that to any point from here on.
JUDGE GEDDES: Thank you very much.”
The outcome was, therefore, that the judge awarded Mr Parkes 35% of his costs of the liability issue. Whilst certain of the judge's observations and also the order as drawn may be read as suggesting that he was ordering Mr Parkes to pay 65% of Mr Martin's costs of that issue, it is agreed that he did not in fact do so. Mr Martin was left to pay his own costs. It will be noted that Mr Parkes' counsel, having made the application for costs, took no part in the discussion that followed, but there is no suggestion that she was prevented from doing so.
Mr Parkes's appeal, brought with the permission of my Lady, Smith LJ, challenges the judge's order as to costs as being one whose making involved a misdirection. Ms Ayling, who appears before us for Mr Parkes, said that under CPR Part 44.3 the judge had first to decide whether it was appropriate to make an order for costs, and it is apparent that he thought it was. No question arises as to that. Having so decided, the general rule is that the unsuccessful party must pay the costs of the successful party although the court can make a different order. Part 44.3(4), to which the judge made reference, provides as follows:
“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.”
In the present case, said Ms Ayling, Mr Parkes was the winner because he established liability, albeit with a substantial reduction for contributory negligence. There had been no settlement offers from Mr Martin and so no basis for regarding him as having been the substantial winner. Mr Friday, his counsel, expressly acknowledged in the cited exchange that Mr Parkes was the winner. It follows, submitted Ms Ayling, that the conventional order for the judge to make was to give Mr Parkes his costs. There was, of course, a discretion not to do so or not to award him all his costs if the circumstances of the case justified it and I have referred to Part 44.2(4). But it was said that there was nothing in the circumstances of this case that did justify depriving Mr Parkes of 65% of his costs. There was, in particular, no suggestion that his conduct on the liability issue involved any wasting of costs or the exploration of issues that did not justify exploration. The judge identified...
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