Patience v Tanner and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lady Justice Black,President of the Queen's Bench Division |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 158 |
| Docket Number | Case No: A2/2014/3956 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2016 |
[2016] EWCA Civ 158
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice Black
and
Lord Justice Gross
Case No: A2/2014/3956
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BRISTOL
His Honour Judge Rutherford
2BS02586
Royal Courts of Justice
Strand, London, WC2A 2LL
Steven Ball (instructed by Clarke Willmott LLP) for the Appellant
Jonathan McNae (instructed by Gordon Dadds LLP) for the Respondent
Hearing dates: 01 March 2016
INTRODUCTION:
This is another unfortunate case where costs have come to overshadow the issues as to liability originally in dispute. With respect, the failure to separate wood from trees has brought the parties to the position in which they now find themselves.
So far as relevant to this appeal, by his judgment dated 13 th November, 2014 ("the judgment"), reflected in his subsequent order dated 11 th February, 2015, HHJ Rutherford ordered:
i) That the Respondents ("the Respondents", "Mr Tanner" and "Bloor" as appropriate) pay the Claimant's ("Mr Patience's") costs up to and including the 29 th May, 2014 on the standard basis;
ii) That Mr Patience pay Mr Tanner's and Bloor's costs from 29 th May, 2014, on the standard basis.
From that judgment, Mr. Patience appeals to this Court. He contends that that part of the Judge's order requiring him to pay Mr. Tanner's and Bloor's costs from 29 th May, 2014 should be set aside in favour of an order that he should recover all of his costs of the proceedings, alternatively that after 29 th May, 2014, he should recover a reduced portion of his costs.
The Respondents have not sought to challenge the Judge's conclusion that they pay Mr. Patience's costs up to and including the 29 th May, 2014. They do, however, seek to uphold the Judge's decision as to the payment of costs in their favour from the 29 th May, 2014, both for the reasons he gave and, if necessary, by way of a Respondents' Notice.
We were told that the costs for the period post-29 th May, 2014 were roughly as follows: Mr. Patience's costs were in the region of £35–40,000, inclusive of VAT; the Respondents' costs amounted to some £80,000, excluding VAT, of which Mr. Tanner's came to about £20,000 and Bloor's to about £60,000.
THE UNDERLYING FACTS AND THE PROCEDURAL HISTORY
In short summary, in 2006, Mr. Patience sold an area of land to Mr. Tanner on terms that Mr. Tanner would then grant, or procure the grant of, rights of way. In March 2007, Mr. Tanner sold the land (with some other land) to Bloor, a property developer. The 2007 transfer obliged Bloor to perform Mr. Tanner's obligations for the grant of easements, pursuant to Mr. Tanner's 2006 agreement with Mr. Patience.
By 2012, the land (or such part of it as is material) had been developed into a housing estate but the relevant easements had not been granted. It is said, on behalf of Bloor, that it could have made a grant of rights over various different routes; however, not all the routes would have been as useful to Mr. Patience. Accordingly, rather than unilaterally grant the easements in a manner most useful to Bloor, attempts were made to determine whether a route could be set out that would be of utility to Mr. Patience.
At all events, in 2012 and just under 6 years after the sale agreement was entered into, Mr. Patience issued proceedings. He claimed specific performance to compel Mr. Tanner to procure the grant of the easements, alternatively damages.
Mr. Tanner defended the claim on a variety of grounds, including laches. Proceedings were stayed for negotiation purposes before Mr. Tanner then commenced Part 20 proceedings against Bloor, in effect in the alternative to his Defence. In the main, at least vis a vis Mr. Patience, Bloor adopted Mr. Tanner's Defence.
By May 2014, the time for the exchange of witness statements was approaching. On the 8 th May, 2014, Bloor's solicitors ("GD") wrote to Mr. Patience's solicitors ("CW") in the following terms ("the May offer"):
" We enclose original and counterpart Deed Grant of an Easement for execution by your client. For the avoidance of doubt, once completed, this document will grant your client the rights contained….[in]…the Agreement dated 20 July 2006 between your client and Leonard Tanner.
……
In light of your client's pleaded case we expect to receive the original and counterpart of the deed executed by your client by return and by no later than 4pm on 29 May 2014 (21 days from the date of this letter).
….."
The same letter then went on to deal with proposals for extending time for exchanging witness statements. An unexecuted deed of grant was enclosed.
It is plain from subsequent correspondence, in particular an e-mail dated 27 th May ("the 27 th May e-mail") that the May offer was understood by CW as constituting "an open offer to grant my client a defined right of way across the housing estate". However and as will be apparent, the May offer said nothing as to the costs consequences of accepting the offer. In the 27 th May e-mail, sent to GD and Mr. Tanner, CW queried the position as to costs, in the event that Mr. Patience accepted the proposed Deed of Grant. CW added that in view of Bloor's offer there was "…clearly the possibility that the substantive issues in the claim may well be settled".
In the event, by a Consent Order, signed by all parties on the 28 th May, 2014, the forthcoming Case Management Conference ("CMC") was adjourned and the claim was stayed until 4 th July, 2014, "to allow the parties to explore the possible resolution of this matter".
The 29 th May (21 days after the making of the May offer) came and went without Mr. Patience accepting the May offer.
It may, however, be noted that before the 29 th May, both Mr. Tanner and GD had indicated that they would respond to CW's query as to the costs consequences of accepting the May offer. No response was, however, then forthcoming and, on the 10 th June, 2014, CW chased for a response. On the 11 th June, GD indicated that they were proposing responding in one document to all the issues raised by CW and were in the process of taking Bloor's further instructions.
Following a further e-mail of 12 th June from CW to GD, continuing to seek clarification of the May offer before confirming whether or not Mr. Patience was prepared to accept it, GD responded at length on the 16 th June ("the 16 th June e-mail"). GD here stated that, by making the May offer, Bloor had "made a real attempt to give Mr. Patience everything he asked for in his claim". The 16 th June e-mail continued as follows:
" Your client failed, however, to accept the Offer within the 21 day period. The Offer has therefore lapsed and is now not capable of being accepted. If your client had any queries in respect of the Offer he should have raised these in good time prior to the deadline.
Because your client has failed to accept the Offer we consider that he is at a serious risk in terms of costs sanctions in respect of these Proceedings."
The e-mail then went on to deal with a number of detailed matters, or contentions, as to the rights of way and complained that Mr. Patience had not cooperated in seeking to resolve the matter before the commencement of the legal proceedings. There was thus an argument as to costs (both post—and pre—action). The 16 th June e-mail concluded as follows:
" It is a matter for your client as to whether he wishes to continue with these Proceedings. Our client's offer was very generous as we do not consider that your client has any entitlement to the extent of the rights contained within the Offer. You should note that our client is minded not to repeat such an offer.
Unless your client is willing to immediately withdraw these Proceedings it appears that this matter will be proceeding to trial."
It does not appear that there was any response from CW to the 16 th June e-mail.
The stay was lifted and the action proceeded. The trial was fixed to begin on Monday 10 th November, 2014.
On the 3 rd November, GD, on behalf of Bloor wrote to CW ("the November offer") in "…a final attempt to resolve this dispute" – re-offering "the terms" of the May offer. The November offer underlined the mounting costs and stated that if all the proceedings could not be satisfactorily compromised by 15.00 on Wednesday 5 th November, then the parties would be required to attend the hearing in any event.
On the 5 th November, CW confirmed that Mr. Patience was "content to accept" Bloor's open offer and enclosed the Deed of Grant of Easement, executed by Mr. Patience.
Nonetheless, the parties attended before the Judge on Monday 10 th November, somewhat, it would appear, to his surprise, as can well be understood.
THE JUDGMENT UNDER APPEAL
At the very beginning of the judgment, the Judge said this:
" 1. This case is all about costs: how the costs of this action, which settled just before the trial, should be apportioned between the three parties."
In the event, the trial took some two and a half days even though it was dealt with by submissions and without any live evidence.
The Judge observed (at [7]) that, at no time between the sale to Mr. Tanner and the issue of proceedings in 2012 had anyone asserted that Mr. Patience had lost the right to insist on the rights of way. Further, it was important to note that the obligation to grant the rights of way did not depend on Mr. Patience having to do anything. Referring (at [8] and following) to the failure to resolve matters by 2009, the Judge remarked that Mr. Patience "…clearly was not...
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