Patley Wood Farm LLP v Kristina Kicks
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 06 December 2022 |
| Neutral Citation | [2022] EWHC 3118 (Ch) |
| Docket Number | Case Nos: 166 and 167 of 2015 |
| Court | Chancery Division |
[2022] EWHC 3118 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case Nos: 166 and 167 of 2015
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
INSOLVENCY AND COMPANIES LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
William Day (instructed by Moore Barlow LLP and Stewarts Law LLP) for the Applicants
Rowena Page (instructed by Gateley Legal) for the Respondents
Alexander Learmonth KC (instructed by Direct Access) for Mrs Nihal Brake and Mr Andrew Brake
Consequential matters dealt with on paper
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 6 December 2022.
Introduction
On 25 November 2022 I handed down written reasons for judgment on an application dated 8 November 2022, which I had heard on 16 November 2022, and in which I had announced my decision on 17 November 2022. The application was for an order that the trustees in bankruptcy of Mr and Mrs Brake intervene in proceedings (known as the Cottage Eviction Proceedings) pending in the Court of Appeal. My decision as announced was that I would grant the order sought subject to one amendment.
I invited written submissions from the parties on consequential matters, and have now received and considered them. The submissions related to two matters: first of all the question of permission to appeal, and second, the question of costs. I shall deal first with the latter question.
Costs
The rules relating to costs in English civil litigation are well known. Under the general law, costs are in the discretion of the court: Senior Courts Act 1981, section 51(1); CPR rule 44.2(1). However, if the court decides to make an order about costs, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party: CPR rule 44.2(2)(a). However, the court may make a different order: CPR rule 44.2(2)(b). In deciding whether to make an order and if so what, the court will have regard to all the circumstances, including conduct of all the parties and any admissible offer to settle the case (not falling under CPR Part 36) which is drawn to the court's attention: CPR rule 44.2(4).
In particular, the court may make an order (amongst others) that a party must pay a proportion of another party's costs, an order that costs be paid from or until a certain date only, and an order for costs relating only to a distinct part of the proceedings: CPR rule 44.2(6)(a), (c) and (f). But, before making an order of the last type, the court must first consider whether it is practicable to make one of the first two types: CPR rule 44.2(7). So, an issues-based order is possible, but the rules require the court first to consider making a proportion of costs order or a time limited order.
The general rule requires the court to ascertain which is the “successful party”. In Kastor Navigation Co Ltd v Axa Global Risks (UK) Ltd [2004] 2 Lloyd's Rep 119, Rix LJ (giving the judgment of the Court of Appeal) said (at [143]) that the words “successful party” mean “successful party in the litigation”, not “successful party on any particular issue”.
Successful party
In the present case, I think it is appropriate to make an order for costs, and therefore I must first consider which was the successful party. The respondent trustees say that only the first and second applicants were successful, and that even they did not succeed on everything, because I amended the draft order to provide for an option and not a requirement for the trustees to grant a licence to Chedington.
I reject that submission. It is completely unreal. I have no doubt that the applicants were the successful party. I did not have to decide whether the third applicant had standing, because I was sure that the first two had such standing, but I expressed the provisional view that it did. The applicants succeeded on the substance of the application, and the respondents should have agreed at least to that substance. Instead, they chose to defend it, and vigorously. The reality is that the applicants won a highly contentious application. The letter of 15 November merely clarified the position from the earlier correspondence. In my judgment, it did not change the position materially. If the respondents had wished to seek such clarification, they could have done so, but they did not.
A different order?
Accordingly the general rule would be that the respondents should pay the applicants' costs. Is there any reason for the court to make a different order? The respondents say that there is. In addition to the point that the order made did not give the applicants everything they originally asked for, they say that the trustees should not be liable for costs before the applicants' letter of 15 November, and that any costs should be reduced to reflect the fact that the applicants instructed two firms of solicitors. They say that the fair order would be no order as to costs.
It is correct that the order made did not give the applicants everything they originally asked for, but, as I have said, in substance they were successful, and they did not oppose the option suggestion when made at the hearing. In these circumstances, I do not think it would be right to make a proportionate award of costs on that account. As for the point about the letter of 15 November, there is nothing in this. Funding and indemnity were clearly available on 9 November 2022, and the respondents refused to intervene then. Then they misunderstood the applicants' subsequent letter of 10 November. The misunderstanding was corrected in the letter of 15 November.
There is perhaps more to the point about duplication of costs by instructing two firms of solicitors. But this is in reality a point about the assessment of costs, rather than about whether in principle the respondents should pay the applicants' costs. Nevertheless, I should address it, and now is as good a point as any.
The authority usually cited in modern times for the proposition that claimants should be represented by a single set of solicitors is Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601, CA. That was a case where a plaintiff applied for an order to deconsolidate already consolidated libel actions intended to be tried before a judge and jury. The two plaintiffs were in fact then, and always had been, separately represented.
Pearson LJ said (at pages 619–621):
“We have been urged on behalf of the plaintiff Lewis, and to some extent on behalf of the plaintiff company also, to permit the separate representations to continue and to make consequential provisions or suitable directions to fit that situation. But I think it is right to go further back and consider whether it was right in the first instance that such separate representation should be created. In my view, it was not regular, and not in accordance with the proper practice, that two firms of solicitors should be placed on the record as representing the plaintiff Lewis and the plaintiff company separately.
[…]
The rule is clearly stated in Wedderburn v Wedderburn, where Sir John Romilly M.R. said [ (1853) 17 Beav 158, 159]:
‘Mr. and Mrs. Hawkins may, in concurrence with the other four co-plaintiffs, remove their solicitor, and the other four may allow him to conduct the proceedings for all. But if the plaintiffs do not all concur, Mr. Hawkins cannot take a course of proceeding different and apart from the other plaintiffs, for the consequence would be, that their proceedings might be totally inconsistent. When persons undertake the prosecution of a suit, they must make up their minds whether they will become co-plaintiffs; for if they do, they must act together. I cannot allow one of several plaintiffs to act separately from and inconsistently with the others.’
That is the proper rule of practice, and it has plainly been departed from on the plaintiffs' side in this case.
There is the interest of the court itself in having actions properly constituted, so that regular trials may be had; and here is an irregular situation. I am not saying that it would be impossible ever in any case to have separate representation, wholly or partially, in a consolidated action. It is not very easy to envisage such cases; but they can arise, and an illustration is Healey v A Waddington & Sons Ltd [ [1954] 1 WLR 688;]. In that case eight actions were consolidated as to the issue of liability but separate representation was allowed as to the issue of damages. That is an interesting case, and it shows the possibility of at any rate partial separate representation in consolidated actions. But it is, in my view, not a good guide or a good precedent for the present case, because there the trials were going to be by judge alone and were in respect of an accident, whereas here we are faced with an action or actions for libel to be tried by judge and jury. It would be extremely inconvenient and awkward, so far as one can see, to have any separate representation in a matter of that kind. Many difficult problems would arise. How would the opening speech (or speeches) be made? Would it be right that the plaintiffs should have as against the defendants the advantage of two opening speeches instead of one? Then, in the conduct of the case, if...
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Patley Wood Farm LLP v Kristina Kicks
...the order under appeal on 25 November 2022, the judge considered consequential issues in a further judgment dated 6 December 2022 ( [2022] EWHC 3118 (Ch), [2023] Costs LR 171). He ordered the Trustees to pay the Applicants' costs of the application, refused to allow the Trustees to recoup ......