Seacroft Hotel (Teignmouth) Ltd v Goble
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 05 April 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0405-1 |
| Docket Number | 84/0142 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 1984 |
[1984] EWCA Civ J0405-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWTON ABBOT
COUNTY COURT
(HIS HONOUR JUDGE NEVILLE)
Royal Courts of Justice
Lord Justice Slade
and
Lord Justice Browne-Wilkinson
84/0142
Case No. 81 01166
and
MR. M. MEEKE (instructed by Messrs. Stone & Co, Solicitors, Exeter EX4 3QQ) appeared on behalf of the Plaintiffs (Appellants)
MR. K. LEWISON (instructed by Messrs. Tozers, Solicitors, Teignmouth TQ14 8DR) appeared on behalf of the Defendant (Respondent)
This is an appeal by the plaintiffs in an action, Seacroft Hotel (Teignmouth) Ltd., from part of an order of His Honour Judge Neville made on 23rd May 1983 at the Newton Abbot County Court. The appeal, which is made with the leave of the judge and has been very well argued on both sides, relates solely to costs. It raises questions as to the effect of costs of a late "payment in" into a county court, followed by a correspondingly late acceptance of the sum so paid. I do not, for my part, regard the questions as easy.
A synopsis of relevant facts has been helpfully agreed between the parties for the purposes of this appeal, from which I will quote verbatim:
"1. The Plaintiff is the owner of premises formerly known as The Seacroft Hotel on the seafront at Teignmouth in Devon.
"2. In about 1973 the Plaintiff obtained Planning Permission to convert the Hotel into 10 flats and began that work.
"3. By a Conveyance of 30th March 1973 the Plaintiff conveyed the freehold of one flat to the Third Parties who were and are Directors of the Plaintiff and who are with one Miss Payton a sister of the Second named Third Party, the only shareholders in the Plaintiff Company. This Conveyance contained a liability to contribute to the expenses incurred by the Plaintiff in maintaining the building. The Third Parties have lived in their flat since 1951.
"4. Between 1975 and 1979 the Plaintiff demised the 9 remaining flats to various tenants on 999 year leases at a ground rent of £1 per annum. In addition a three room studio was demised to one of the tenants on a similar lease".
I pause at this point to explain that the defendant is one of these tenants.
"5. By each lease the lessee covenanted to pay an appropriate part of the cost of maintenance, repair and insurance of the block of flats and parts common to the 9 flats and in the case of some 6 having a common entrance, staircase, landings and passageways the lessees of those flats covenanted to pay an appropriate part of the cost of maintenance repair and renewal of those parts.
"6. Each lease provided inter alia that the amount of aforesaid payments 'shall be ascertained and certified by a certificate signed by the lessor's Auditors or Accountants or Managing Agent acting as experts and not as arbitrators annually and so soon after the end of the lessor's financial year as may be practicable'.
"7. At the beginning of 1979 differences arose between the Plaintiff and the lessees over the necessity for certain works on the block of flats and over the quality and cost of those and other works and services. The lessees formed themselves into a Tenants Association which was recognised by the Plaintiff and there was considerable correspondence between the Plaintiff's Solicitor and the Tenants Association, its Solicitor, individual Tenants and their Solicitors.
"8. By letter dated the 14th October 1980 the 1973 Conveyance was disclosed to the lessees for the first time.
"9. In August 1977 the Plaintiff delivered a statement of expenses to each lessee for the year ended March 1976. In September 1977 the Plaintiff delivered a statement of expenses to each lessee for the year ended March 1977. In December 1978 the Plaintiff delivered a statement of expenses to each lessee for the year ended March 1978. The lessees duly paid the amount requested for each of these three years. In January 1979 the Defendant's Solicitor wrote to the Plaintiff's Solicitor stating that a certificate as required by the lease had not been produced. On the 29th May 1980 revised draft statements of expenses for the years ended March 1976 to March 1979 inclusive were submitted to the lessees. On the 22nd December 1980 signed certificates in accordance with paragraph 6 above showing expenditure incurred under paragraph 5 above for the years ended March 1976 to March 1980 inclusive were delivered to each lessee together with a demand for the appropriate part payable by each lessee. The figures in the certificates for the years ended March 1976 to March 1978 inclusive were the same as those contained in the statement of expenses delivered in the years 1977 and 1978. The lessees did not pay the service charge accounts in respect of the years ended March 1979 and March 1980. Copies of all the vouchers and receipts in support of the accounts for the year ended 1980 and 1981 had been sent to the Defendant's Solicitors on the 4th day of December 1981.
"10. In consequence on the 24th day of August 1981 Particulars of Claim were filed against each of the 10 lessees claiming a total of £6,900.57.
"11. On the 20th day of October 1981 the Plaintiff delivered a further purported certificate in accordance with paragraph 6 above showing expenditure incurred under paragraph 5 above for the year ended 31st March 1981 and a demand for the appropriate part payable by each lessee. No lessee made any payment so demanded.
"12. In consequence on the 12th day of November 1981 Particulars of Claim against each of the 10 lessees were amended to add the amount demanded and described under paragraph 11 above. The total claimed was £13,282.44.
"13. On the 29th day of October 1981 there was a pre-trial review in each of the 10 actions. The Registrar ordered inter alia that the 10 actions be consolidated under Case Number 81 01166. Thereafter that action proceeded as though the Defendant was the Tenants Association. There were no interlocutory applications in that action save for an unsuccessful application for an adjournment of the trial by the Plaintiff on the 9th day of May 1983 due to the shortage of time to consider the Defendant's Expert Surveyor's report.
"14. On the 29th day of October 1981 following the pre-trial review payments into Court totalling £4,657.53 were made on behalf of the 10 lessees.
"15. The Defendant filed her Amended Defence and Counterclaim on the 22nd day of March 1982.
"16. On the 1st day of September 1982 further payments into Court totalling £3,053.00 were made on behalf of the 10 lessees.
"17. The Plaintiff discovered its documents by list dated the 13th day of December 1982. The Defendant discovered her documents by list dated 14th day of March 1983.
"18. The Plaintiff received its Expert's report dated 1st October 1982 on the 4th November 1982 and served the report on the Defendant on the 1st February 1983. The Defendant served her Expert Surveyor's report on the 27th day of April 1983".
I omit reference to paragraph 19 of the synopsis, which refers to a "without prejudice" letter which was not before the judge.
"20. On the 11th day of May 1983 the Plaintiff's Accountants files were made available for inspection by the Defendants collecting them from Bristol.
"21. On Wednesday 11th May 1983 the Defendant's Solicitors (who are and were Solicitors to all 10 lessees) notified the Plaintiff's Solicitor by telephone that a further payment in of £1,000.00 was being made the next day. They further confirmed this by telephone on Thursday 12th May and by a letter of that day sent first class post to the Plaintiff's Solicitors. On Monday the 16th May 1983 the Plaintiff's Solicitor received that letter from the Defendant's Solicitors confirming the last mentioned payment into Court. Also on the 16th day of May 1983 the Plaintiffs discovered further financial documents not previously disclosed (namely a ledger kept by Mr. Ridd of payments by and receipts of the Company). On or about the 17th day of May 1983 the Defendants disclosed for the first time receipts and estimates in support of their counterclaim.
"22. On Friday the 13th day of May 1983 the sura of £1,000.00 was paid into Court.
"23. On Tuesday the 17th day of May 1983 the Plaintiff by its Director Mrs. Ridd (the second named Third Party) attended Counsel in Conference at 4.45 p.m.
"24. On Wednesday the 18th day of May 1983 the Plaintiff's Solicitor received notice of the last mentioned payment in from the Newton Abbot County Court.
"25. On Friday the 20th day of May 1983 the Plaintiff's Solicitor gave notice to the Newton Abbot County Court and the Defendant's Solicitors that the payments into Court were accepted. The trial was fixed for the 23rd May 1983.
"26. In the circumstances an agreed bundle containing the Defendant's Accountant's report to which were attached the Plaintiff's Accountant's Certificates and supporting documents in the possession of the Plaintiff's Solicitors was not delivered by the Plaintiff's Solicitors to the Trial Judge for his perusal before hearing as requested, the other bundles A B & D having been so delivered on 18th May 1983.
"27. On Monday the 23rd May 1983 the parties attended before His Honour Judge Neville sitting at Torquay. The Third Party proceedings were discontinued with no order for costs, the same having been agreed between Counsel."
As appears from paragraph 13 of the synopsis, ten actions have been consolidated under the case number of the action to which the defendant is a party (No. 8101166). Since the order for consolidation was made,...
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