R v Cripps, ex parte Muldoon
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 03 April 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0403-1 |
| Docket Number | 84/0139 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 1984 |
[1984] EWCA Civ J0403-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(LORD JUSTICE ROBERT GOFF and MR. JUSTICE MANN)
Royal Courts of Justice.
The Master of The Rolls
(Sir John Donaldson) (Not Present)
Lord Justice Fox and
Lord Justice Stephen Brown
84/0139
MR. M. TUGENDHAT (instructed by Messrs. Penningtons) appeared on behalf of the (Applicants) Respondents.
MR. T. BARNES (instructed by Messrs. Frere Cholmeley) appeared on behalf of the (Respondents) Appellants.
This is the judgment of the court.
This appeal concerns the aftermath of an election petition by Mr. Muldoon and others questioning the election of Mr. Slade to the Greater London Council as a representative of the Richmond on Thames area. The petition has proved a disaster for all concerned and the aftermath is, if possible, something worse.
The eleetion took place on the 7th May, 1981. The petitioners alleged that Mr. Slade and his agent, Mrs. Wainwright, had been guilty of corrupt or illegal practices under no less than 15 different headings. Mr. Anthony Cripps, Q.C. was appointed, under section 115 of the Representation of the People Act 1949, to constitute an election court charged with the duty of trying the petition and this he did over 13 days between the 1st and 19th March, 1982.
On the 23rd March, 1982 the learned commissioner delivered a long and detailed judgment in which he rejected all the allegations of corrupt practices and all, save two, of the allegations of illegal practices. These exceptions consisted of (1) expending £1,993.64 on the election, when the maximum permissible amount was £1,992.98—an overspending of £0.66: and (2), which was more serious, the making of an untrue return. He granted Mr. Slade and Mrs. Wainwright relief from the consequences of these illegal practices, upon their paying the petitioners' costs relating to the application for relief.
That left the question of who should pay the costs of the petitioners and of Mr. Slade in relation to the petition itself, including the trial of that petition. As the trial had lasted 13 days, those costs were bound to be heavy and in the event the petitioners say that their costs alone amounted to £42,000.
The learned commissioner heard argument on this issue. Mr. Barnes submitted that Mr. Slade should recover at least part of his costs from the petitioners. The basis of this submission was that the petitioners had failed in 13 of the 15 issues and that these occupied the greater part of the trial. On the other hand, Mr. Peter Bowsher, Q.C., then appearing for the petitioners, submitted that the petitioners should have all the costs. For present purposes it is only necessary to record that Mr. Barnes referred the learned commissioner to paragraphs 958–961 of Halsbury's Laws of England (4th edition) volume 15. Paragraph 961 is in the following terms:
"961. General rule as to costs. The general rule is that costs follow the event, but the rule may be displaced by special circumstances, in which case the court will make a special order. The practice is that if the petitioner is successful and is awarded costs the respondent will nevertheless be awarded costs in respect of charges in which the petitioner was not successful and which involved the respondent in extra expense. The practice used to be to leave the question as to what extra expense has been so caused to be decided by the taxing master, but this practice no longer obtains, and the court settles the question of what costs should be allowed."
The learned commissioner announced his decision in the following terms:
"It is clear to me that the Respondents ought not to have any costs. The Respondent has really brought the case on himself in the manner I have indicated. Therefore, there will be no order for any costs to be paid to the Respondent.
As far as the petition is concerned, I also bear that in mind and I bear in mind the fact that the Petitioner has succeeded and has succeeded on matters which were raised and were important, but in my judgment the Petitioner has certainly taken up more time than was necessary, even in view of the way in which the Respondent has refused at earlier stages to co-operate what appears to be reasonably in producing the documents. The order, therefore, is that the Respondent has to pay three-quarters of the Petitioners' costs, including the re-amendment, to be taxed if not agreed."
This was translated into a formal order, reading:
"It is further ordered that
1. The Respondent Adrian Carnegie Slade do pay to the Petitioners three quarters (75%) of their costs properly incurred in relation to the Petition including the costs reserved by this Court on 8th March, 1982 in dealing with the Petitioners' application to re-amend their petition and that such costs be taxed by a Taxing Master if not agreed."
There matters rested until October 1982 when Mr. Slade's solicitors received the petitioners' bill of costs. He then sought and obtained an adjournment of the appointment for taxation. In a letter to the Chief Taxing Master, his solicitors said:
"The principal Bill of Costs presented by the solicitors representing the Petitioners in this matter does not, in our view, conform with the Order for Costs made by Commissioner Cripps Q.C.
Briefly, the Election Petition sought to establish that the Respondent was guilty of a number of corrupt and illegal practices on a variety of grounds. In the end, the Petitioners failed to succeed on a number of such grounds, although they did succeed on others. However, the Court granted the Respondent relief in respect of the grounds on which the Petitioners did succeed.
The principal Bill of Costs seeks to include the costs incurred by the Petitioner in respect of grounds on which they did not succeed, presumably on the basis that such costs were 'properly incurred in relation to the Petition' as provided for in Commissioner Cripps QC's Order for Costs.
In our view the Petitioners should not be entitled to costs in respect of grounds on which they did not succeed and accordingly in order to avoid a lengthy dispute on taxation as to the interpretation of Commissioner Cripps QC's Costs Order and in particular the expression 'properly incurred', we wish to have the opportunity on behalf of the Respondent to make an application to Commissioner Cripps QC for a clarification of his Costs Order."
The application to the learned commissioner was made on the 3rd November, 1982 and he said:
"[Commissioner Cripps]: The application before me raises a point under the Order made at the end of the Local Government Election Petition heard earlier this year. The point concerns costs. The actual order was 'It is further ordered i that the Respondent to pay the Petitioners three-quarters of their costs properly incurred in relation to the Petition including the costs reserved by this Court on 8th March 1982 in dealing with the Petitioners' application to re-amend their Petition and that such costs be taxed by a Taxing Master if not agreed.'
I am certainly not going to seek to usurp any of the function of a Taxing Master for which I would be unqualified, nor am I going to seek in any way to vary the order which was made but merely to seek to clarify it.
The main points about this lengthy matter were first, that on the Petition itself the Respondents succeeded technically in the sense that there were illegal but not corrupt practices found. On the subsequent application the Petitioner succeeded and it was clear that on any probable result of the evidence as it came out that there would be relief to the Respondent on all the matters on which the Petitioner succeeded. I therefore regarded the Petitioners' result as being a success of what one might call to some extent a technical kind. It was for that reason that the 75 per cent was imported into the order. That was one restriction on the costs to be paid. But there was also a completely separate restriction on the costs to be paid, namely those properly incurred. In those properly incurred I intended to be included the costs relevant to the two matters on which the Petitioners were successful, namely in relation to the return itself and in relation to the Young Liberals' letter, items 1 and 6 of the 15 headings mentioned in the judgment. I did not intend to be included any costs referable to and of the other items in those 15 headings—2,3,4,5,7,8,9,10,11,12,13,14 and 15—because it seems to me that on those matters, bearing in mind that there had only been as it were a technical success, on the other matters there was not even a technical success, but complete failure.
Therefore what the order means is that the Taxing Master as best he can is to tax the costs which were incurred in relation to the two matters I have mentioned, the return itself and the Young Liberals' letter, and in addition to that the costs of the Petitioners in relation to the application to re-amend the Petition. Having arrived at that total sum the order requires 75 per cent only of that to be paid. In other words there were two restrictions: one, as regards the percentage of the amount, and two, as regards what headings should be included in the amount.
The order itself does have as an appendix to it the dates and times upon which the matter occupied the time of the Court, and it might be possible from those to arrive at some proportion of time to satisfy the Taxing Master, or it might be possible to satisfy the Taxing Master by considering the...
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