Raja v Rubin and Another

JurisdictionEngland & Wales
JudgePeter Gibson L.J.,Clarke L. J.,Hirst L. J.
Judgment Date19 March 1999
Judgment citation (vLex)[1999] EWCA Civ J0319-13
Docket NumberCHBKF 97/1199/2
CourtCourt of Appeal (Civil Division)
Date19 March 1999

Court of Appeal

Before Lord Justice Butler-Sloss, Lord Justice Morritt and Lord Justice Sedley

Globe Equities Ltd
and
Globe Legal Services Ltd and Others Same v Same Kotrie and Others v Globe Equities Ltd Globe Equities Ltd v Globe Legal Services Ltd and Another

Practice - ordering costs against non-party

Ordering costs against non-party

In determining whether a costs order should be made against a non-party pursuant to section 51 of the Supreme Court Act 1981, the test was whether in all the circumstances it was just to exercise the power.

While it would be unjust in the vast majority of cases to make such an order, it was not a pre-condition of the exercise of the power that the circumstances were exceptional.

The Court of Appeal so held in a reserved judgment, dismissing an appeal by solicitors, Miller Gardner, against the order of Mr Justice Parker, sitting as Vice-Chancellor of the County Palatine of Lancaster in Manchester on June 6, 1997, that Miller Gardner, who were solicitors for defendants, should pay the plaintiffs' costs on an indemnity basis in respect of two successful actions against Globe Legal Services Ltd, Geoffrey Brian Miller and others.

The Court of Appeal dismissed the plaintiffs' cross-appeals against the judge's refusal to make similar costs orders in an unsuccessful third action brought against the plaintiffs by Mr Miller and others, and in a fourth action by the plaintiffs against Globe, Mr Miller and another.

The defendant, Mr Miller, was one of two partners in the solicitors' firm, Miller Gardner. The first two actions related to rent due under a lease of premises owned by the plaintiffs and occupied initially by Mr Miller and others in a former solicitors' firm, and subsequently by Miller Gardner.

Globe Legal Services was a company formed by Mr Miller and another to hold the lease and Mr Miller and others guaranteed its obligations.

The judge, upholding a district judge's order for summary judgment in the first two actions, held that, although not a party to the rent actions, Miller Gardner were the real defendants, that the actions were continued for the benefit of Miller Gardner in that the continuance of the litigation enabled them to remain in the premises for over two years without paying rent; and that the defences and counterclaims in the actions were hopeless.

Miller Gardner appealed the orders for costs. The matters arising on the plaintiffs' cross-appeals in the third and fourth actions are not reported.

Mr Gabriel Moss, QC and Miss Roxanne Ismail for Miller Gardner; Mr James Bonney, QC and Mr Jonathan Gavaghan for the plaintiffs.

LORD JUSTICE MORRITT said that the jurisdiction to award costs against a non-party was conferred by section 51(1) and (3) of the Supreme Court Act 1981: see Aiden Shipping Co Ltd v Interbulk LtdELR ((1986) AC 965).

Counsel for Miller Gardner, basing himself on Symphony Group plc v HodgsonELR((1994) QB 179, 192-193), submitted that the facts did not bring it within the category of exceptional so as to entitle the court to make the orders.

There appeared to be a danger of treating the requirement that the circumstances were exceptional as being part of the statute. It was not. The epithet originated in Hodgson case, but was based on what Lord Goff of Chieveley said in Aiden Shipping (at p980F):

"In the vast majority of cases, it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But . . . that is not always so."

"Exceptional circumstances" had not been elevated by the authorities into a pre-condition to the exercise of the power; nor should they be.

Ultimately the test was whether in all the circumstances it was just to exercise the power conferred by the Act to make a non-party pay the costs of the proceedings.

Plainly, in the ordinary run of cases where the party was pursuing or defending the claim for his own benefit through solicitors acting as such, there was not usually any justification for making someone else pay the costs.

But there would be cases where either or both those two features were absent. In such cases it would be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on were such as to make it just to order a non-party to pay the costs.

Thus the exceptional case was one to be recognised by comparison with the ordinary run of cases, not defined in advance by reference to any further characteristic.

In the circumstances, the judge was entitled to conclude that the case was exceptional so as to justify an order for costs against Miller Gardner.

Lord Justice Butler-Sloss and Lord Justice Sedley agreed.

Court of Appeal

Before Lord Justice Swinton Thomas, Lord Justice Auld and Lord Justice Thorpe

Budd
and
Colchester Borough Council

Statutory nuisance - serving noise nuisance notice - requirement to abate sufficient

Serving noise nuisance notice

A local authority was entitled under section 80(1) of the Environmental Protection Act 1990 to serve a notice simply requiring the recipient to abate the nuisance created by barking dogs without specifying the manner of abatement or the level of barking either which constituted the nuisance or which would be acceptable.

The Court of Appeal so held, dismissing the appeal of David Budd against the dismissal by the Queen's Bench Divisional Court of his appeal by case stated against the dismissal by Judge Rice at Chelmsford Crown Court of his appeal against the dismissal by Colchester Justices to dismiss his appeal against an abatement notice served on him by Colchester Borough Council on March 31, 1994.

Mr Gregory Stone, QC and Mr Jonathan Tod for Mr Budd; Mr David Holborn for the council.

LORD JUSTICE SWINTON THOMAS said that the notice identified the nuisance as "dog barking" and required him to abate the nuisance within 21 days.

Mr Budd kept six greyhounds. There were many complaints from the neighbours about the dogs barking, particularly in the early hours of the morning.

Section 80(1) of the 1990 Act provided the local authority with a choice. The local authority was required to serve a notice "imposing all or any of the following requirements", namely "requiring the abatement of the nuisance" or "requiring other steps as may be necessary".

Depending on the circumstances, it was open to the local authority to take one or other course when serving the notice.

It was not difficult to envisage facts where it would be wholly unreasonable for a local authority to serve a notice merely requiring the recipient to abate the nuisance without stating the works or steps which the local authority required to be taken for that purpose, or where it was clear on the face of the notice that the notice itself required such works or steps to be taken.

Kirklees Metropolitan Borough Council v FieldUNK ((1997) 96 LGR 151) was such a case. A rock face and a wall were in imminent danger of collapse on to some cottages and the notice merely required the owners of the rock face and wall "to abate the statutory nuisance".

It was clear from the notice itself that the only way the nuisance could be abated was by carrying out very extensive works of shoring up the wall and securing the rock face.

In those circumstances, Mr Justice Owen stated that the notice plainly required the execution of works and, accordingly, the works had to be stated in the notice.

In the ordinary way a local authority was entitled under section 80(1) to serve a notice simply requiring the recipient to abate the nuisance. It was a wholly appropriate course for the council to take in this case.

The barking of the greyhounds was a nuisance by noise to Mr Budd's neighbours. There were many ways in which he might abate the nuisance.

The most extreme would be to get rid of all six greyhounds, but that might well be an unreasonable requirement. A reduction in the number of dogs might abate the nuisance. Insulation of part of the house might be sufficient.

It might be possible to send the dogs to an animal training centre to cure the problem. However, it might well not be reasonable for the local authority to require Mr Budd to take that course, because he might not be able to afford to do so.

It was quite sufficient for the local authority to require Mr Budd himself to abate the nuisance in a manner which was the least inconvenient or expensive and the most acceptable to him.

Nor was it necessary for the local authority to state the level of barking which constituted the nuisance, or the level of barking which would be acceptable. Indeed, it would be impracticable for the local authority to do so.

The local authority was entitled to serve a notice requiring Mr Budd to abate the nuisance which involved reducing the level of barking so that it ceased to be a nuisance by noise.

Lord Justice Auld and Lord Justice Thorpe agreed.

[1999] EWCA Civ J0319-13

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION

(BANKRUPTCY COURT)

(Sir John Vinelott sitting as a judge of the High Court)

Royal Courts of Justice

Before:

Lord Justice Hirst

Lord Justice Peter Gibson

Lord Justice Clarke

CHBKF 97/1199/2

Manish Raja
Appellant
and
David Rubin
Stuart Goodman
Respondents

MR. V. JOFFE and MR. T. COLLINGWOOD (instructed by Messrs Bowling & Co., London, E15) appeared on behalf of the Appellant.

MR. E. BAILEY (instructed by Messrs Edwin Coe, London, WC2) appeared on behalf of the First Respondent.

MR. D. HALPERN (instructed by Messrs Ralph Davis, London, WC1) appeared on behalf of the Second Respondent.

1

Peter Gibson L.J.
2

The primary issue raised by this appeal is whether an Individual Voluntary Arrangement...

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