Seavision Investment S.A. v Evennett (Tiburon)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE SCOTT,SIR ROGER ORMROD |
| Judgment Date | 21 January 1992 |
| Judgment citation (vLex) | [1991] EWCA Civ J1018-4 |
| Docket Number | 91/0953 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 1992 |
(Sued on his own behalf and on behalf of all other members of 1984 of Syndicates 658 and 728)
and
[1991] EWCA Civ J1018-4
Lord Justice Parker
Lord Justice Scott
and
Sir Roger Ormrod
91/0953
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr. Justice Steyn)
Royal Courts of Justice
MR. C. CLARCK Q. C. and M. S. RUTTLE (instructed by Messrs Ince & Co. appeared on behalf of the Appellant (Plaintiff).
MR. A. HAMILTON QC and MR. D. KENDRICK (instructed by Messrs Cameron Markby Hewitt) appeared on behalf of the Respondent (Second Defendants).
The First Defendant did not appear and was not represented.
This appeal raises a short but interesting and important point with regard to damages. The relevant facts are very simple.
The plaintiff appellants were the owners of a vessel "Tiburon". On 27th June 1984 that vessel, on a voyage from Kharg Island in the Gulf, was struck by an Exocet missile and became a constructive total loss.
The plaintiffs claimed under their War Risks Insurance cover. All the underwriters, save one, paid. That underwriter denied liability on a basis which, if made out, the plaintiffs considered would give them a good claim in negligence against their insurance brokers. Accordingly they proceeded against the underwriters as first defendants and against the brokers as second defendants.
On the first day of the trial the brokers conceded that if the underwriter's defence succeeded, they would be liable to compensate the plaintiffs. The brokers, however, asserted throughout the trial that the underwriters were liable.
At that point it became clear that the plaintiffs would recover against one or the other and they very properly took no further part in the trial, although they appeared thereafter to make submissions with regard to the consequences of the judge holding on 11th June 1990 that the underwriter was not, but the brokers were, liable to the plaintiff. The submissions then made resulted in an order as follows:
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(1) The plaintiffs' claim against the underwriters should be dismissed and the brokers should pay the costs of those proceedings to the underwriters directly.
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(2) The plaintiffs should have judgment against the brokers for US $1,196,180.
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(3) The brokers should pay the plaintiffs costs of the claim against them, such costs being described in the order as "costs qua costs".
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(4) The brokers should also pay to the plaintiffs their own costs of the unsuccessful claim against the underwriters, such costs being described in the order as costs "qua costs and as damages".
There being no contrary direction, all costs ordered would be taxed on the standard basis.
No dispute arises, save in respect of the plaintiffs' costs of the failed action against the underwriter. As to those costs, Mr. Clarke QC, for the plaintiffs, submitted to the judge that they were recoverable as damages on a solicitor and own client basis under Order 62 rule 15, or at the least on an indemnity basis. The brokers conceded that they were recoverable on a standard basis, but contested any entitlement to a higher basis.
The judge rejected the plaintiffs' claim on any of the two higher bases. The plaintiffs now appeal, but on the appeal they do not pursue their claim for costs on a solicitor and own client basis. They contend only for the costs of the failed claim to be paid on an indemnity basis rather than the standard basis.
At the conclusion of the proceedings the plaintiffs asked for leave to appeal on the question of costs, for which they needed leave. That leave was refused.
Section 18(1) of the Supreme Court Act provides for the cases in which there shall be no appeal to the Court of Appeal. One of those cases, which is set out in paragraph (f), is as follows:
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"(f) without the leave of the court or tribunal in question, from any order of the High Court or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal;"
Accordingly there can be no appeal on the question of costs. Mr. Clarke, however, submits that he has a right of appeal on the question of damages.
The initial difficulty which is in his way appears from a combination of section 51 of the Supreme Court Act and Order 62 rule 3 of the Rules of the Supreme Court. Section 51 provides as follows:
"51 (1) Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the...
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