Winter and Another v Traditional & Contemporary Contracts Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,Lord Justice Carnwath,Lord Justice Longmore,Lord Justice Buxton |
| Judgment Date | 07 November 2007 |
| Neutral Citation | [2006] EWCA Civ 1740,[2007] EWCA Civ 1088,[2006] EWCA Civ 1323 |
| Docket Number | Case No: C3/2006/2488,C3/2006/0847,Case No: C3/2006/0847 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2007 |
[2006] EWCA Civ 1323
Lord Justice Lloyd
C3/2006/0847
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(HIS HONOUR JUDGE RICH QC)
Royal Courts of Justice
Strand
London, WC2
MISS L COLLIGNON (INSTRUCTED BY SOLICITOR NAME) APPEARED ON BEHALF OF THE APPELLANT.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgement
This is the oral renewal of an application for permission to appeal on a question of costs, which was refused on paper by Neuberger LJ, his order being sealed on 12 July 2006. The costs arise from proceedings in the Lands Tribunal for the discharge or modification of a restrictive covenant affected land which, it is now clear, formed part of the Cator Estate in Bromley, in South London, in respect of which it is now accepted that the objectors, who are the appellants in this court, have the benefit of certain restrictive covenants, which are of relevance to the applicants' freedom to deal with their land and which have given rise to the application under section 84.
I should say that the respondents to the appeal, the applicants in the Lands Tribunal, did not, at the relevant time, have the benefit of legal advice or representation, and they undoubtedly seemed to have taken some somewhat misconceived views as to the nature of the proceedings and the issues arising in them. What happened, in brief, was that there had been a history of communication and objection between the objectors and the applicants, as I will refer to the applicants in the Lands Tribunal, the respondents before me to do with arising from the planning permission process, and the objectors made the point that there was this covenant. The applicants applied to the Lands Tribunal for its modification or discharge and the objectors took part in the proceedings, and the applicants said, "Well, we don't admit that they have got the benefit of the covenant".
That was then ordered to be dealt with as a preliminary issue, as is normally the case, because it is quite a different kind of issue from whether the applicant should be entitled to have the covenant modified or discharged, and in fact on 19 October 2005, Mr Bartlett QC, the president of the Lands Tribunal, made an order that their entitlement to object should be determined at a preliminary hearing, and ordered them to send to the registrar and to the applicants, by a given date, copies of all documents of title and other documents on which they were to rely. That was later extended to a later date and it was complied with by a letter of 3 November 2005, by which the objectors' solicitors sent to the registrar and copied, no doubt, to the applicants a number of documents, which they relied on to show that the property was within the Cator Estate, and the materials included a letter from the archivist of Bromley Borough Council, who is responsible for cataloguing the Cator Estate papers, which confirmed or appeared to confirm that the land in question had been part of the Estate, and copies of two maps, including one of the Cator Estate as at 1864, were also enclosed.
That was not the first time that applicants had been told the basis on which the objectors said that they had the benefit of the covenant. In the letter from the applicants to the Lands Tribunal of 28 September, they appear not to dispute that the land was within the overall boundaries of the Cator Estate, though not necessarily at the relevant date, but they mention that the Cator Estate may not have included every single parcel of land within its overall boundaries. At all events by 3 November, or by the date on which they received the letter of 3 November, they had the material which the president had ordered to be supplied. On 19 December they responded, in another letter, to the Lands Tribunal in which they demonstrated their lack of full awareness of the nature of the issues, and they really were directing their letter to the substantive issues rather than the question of title. There was however a hearing on 11 January before HHJ Rich QC, attended by a solicitor representing the objectors and attended by two directors of the applicant. I have a transcript of that hearing and I also have a note prepared after the event by the solicitor who represented the objectors. It also refers to some discussions outside court, so to speak.
The outcome of that hearing was that the hearing was adjourned to a date fixed for, I think, 30 January and the reason for the adjournment was that the objectors were not then in a position to produce legally admissible evidence of the title. If they had brought along the archivist to give oral evidence or if they had perhaps produced a formal witness statement from the archivist and had tendered her for cross-examination, which would not, I think, be likely to be very fruitful, the hearing would not have been adjourned. It was adjourned and because of the need for the adjournment, the objectors were ordered to pay the costs of that day, an order which is not challenged because they ought to have been in a position to produce admissible evidence. The judge did indicate to the applicants that (a) they ought to take legal advice; (b) the only question at issue was not the substantive issue but the question of title; and (c) although the applicants were entitled to put the objectors as to strict proof of the title which they had, in principle, already disclosed, they needed to consider carefully whether they would maintain their objection to the point of further hearing, because they would be at risk as to the costs of that hearing.
The other thing that happened on that day was that the on behalf of the objectors there was produced a further copy plan, which had marked on it, in green, the overall boundary of the Cator Estate. This was not an original plan so, in a sense, it had no greater authority than the black and white plan, which had been sent previously, but it may be that (a) the production of that plan, and (b) perhaps more significantly what HHJ Rich had said at the hearing, led the applicants to take the sensible course, which they did by a letter, which I understand to be dated 17 January, withdrawing their objection or non-admission of the objectors' title. So there was no further hearing and the objectors suggested that costs be reserved to the final hearing but, rather than do that, the order was made that written submissions should be put in about costs and the matter would be dealt with on the basis of the written submissions. Ultimately, the judge dealt with the costs in these terms, having mentioned that he had already dealt with the costs of 11 January:
"I have however considered whether it is appropriate to make any further [orders] to the costs of establishing the Objectors' title to object. Having regard however to the objectors' need for an adjournment in order to produce the material which satisfied the applicant, and the applicant's prompt admission of title upon being so satisfied, I have decided that there should be no further order as to costs in respect of the proof of the Objectors' title."
That is the order that the objectors seek to challenge. The appellant's notice was served a little bit out of time and so an extension of time is required. I need say no more about that than that I am satisfied in the circumstances that the delay was (a) minor and (b) excusable, and I therefore do grant an extension of time for the appeal so that the appellants' notice shall be taken to have been served within time.
So far as the substance of the matter is concerned, Miss Collignon, for the objectors, draws my attention to the practice direction of the Lands Tribunal which, in its latest and current version of 11 May 2006, deals with costs at paragraph 22, but does so in the same terms, as I understand it, as the earlier version which was current at the time when HHJ Rich QC made the order now challenged. At 22.2 the practice direction says that costs are in the discretion of the tribunal, subject to certain particular matters which are not now relevant and, subject to what is said below, the discretion will usually be exercised in accordance with the principles applying in the High Court and County Courts. At 22.3 the direction says that the general rule is that the successful party ought to receive his costs, and the rest of that paragraph is not relevant to the present application. 22.4 deals with applications to discharge or modify a restrictive covenant, and it says that on such an application the general rule as to costs does not apply.
The nature of proceedings, under section 84 of the Law of Property Act 1925, is that the applicant is seeking to have removed from the objector particular property rights that the objector has. In view of this, and subject to any offer to settle that either party may have made, an unsuccessful objector who had the benefit of the covenant which has been discharged or modified will not normally have to pay any part of the applicant's costs unless he has acted unreasonably, and a successful objector will normally get all his costs unless he has, in some respect, been unreasonable.
Miss Collignon says that the judge's order is conspicuously inconsistent with either the general rule that the successful party ought to receive his costs, and all the more so with the special rule in 22.4 about costs of applicants under section 84, and that accordingly, while not challenging the costs in respect of the hearing on 11 January, because the objectors should...
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