Case No: B2/2012/2981
Neutral Citation Number: [2013] EWCA Civ 1681
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
HHJ Moloney QC
OCM00922
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/12/2013

Before:

LORD JUSTICE RIMER
LORD JUSTICE KITCHIN
and
LORD JUSTICE CHRISTOPHER CLARKE
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Between:

	(1)	William Patrick Hatton
(2)	Margaret Mary Hatton	Claimants/Respond-ents	
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	(1)	Peter Connew
(2)	Iris Connew	Defendants/Appellants	

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(Transcript of the Handed Down Judgment of
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Stephen Goodfellow (instructed by Linda S Russell) 
for the Claimants/Respondents
James Fieldsend (instructed by direct access) 
for the Defendants/Appellants

Hearing date: 23 October 2013
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Judgment
Lord Justice Kitchin: 
1.	This court gave judgment in this appeal on 10 December 2013 ([2013] EWCA Civ 1560). We decided that the appeal must be allowed in relation to the Bank Strip and the Triangle and that the claim in respect of these two pieces of land must be remitted for re-hearing before a different judge. We also decided that the appeal in relation to the Swathe must be dismissed. Unfortunately the parties were not able to agree the terms of an order reflecting our judgment and they requested time to make further submissions in writing, a request to which we agreed.  They have now filed those submissions together with rival forms of order they invite us to make. This is the judgment of the court upon the outstanding issues.
Disposal of the appeal
2.	We are satisfied this should be in the simple form proposed by the defendants. 
Case management 
3.	The claimants invite us to direct that there should be no further case management and further, that the defendants should not be permitted to amend their pleadings.
4.	We do not consider it appropriate to make these directions. There is no application to amend before us and the defendants have given us no indication they intend to make any such application. If they decide to make such an application and if the claimants oppose it then no doubt it will be addressed on its merits by the judge before whom it comes. Similarly we consider it would be quite wrong for this court to attempt to restrict or fetter the ability of the judge to make any trial management directions that may be considered necessary.
Appeal costs in relation to the Bank Strip and the Triangle
5.	The claimants say the appeal costs relating to the Bank Strip and the Triangle should be reserved for determination by the new trial judge.  The defendants respond that they have won and should have them. 
6.	We agree with the defendants. They sought an order that there should be a re-trial in relation to these pieces of land, and we have decided they are entitled to that order. To this extent they have won.
7.	We do not think it assists the claimants that by letter of 3 November 2011 they made an offer in relation to the Bank Strip and part of the Triangle and that it is possible that on a re-trial the defendants may prevail in respect of portions of these pieces of land but not beat the offer. It seems to us that the appeal is a self contained aspect of the proceedings as a whole and the defendants have secured a re-trial in respect of the entirety of both pieces of land.  That was something which the claimants resisted and we think they should bear the costs of so doing.     
8.	So we turn to consider the proportion of the appeal costs which are properly attributable to these issues. We have taken into consideration the papers, the judgment of the trial judge, the skeleton arguments and our own impression of the time spent upon these issues at the appeal hearing, their complexity and their relative importance. In all the circumstances of the case we believe that a fair and proportionate result would be achieved if we attribute 70% of the appeal costs to these issues. 
9.	In arriving at this figure we are not persuaded that more should be attributed to the Swathe because it is the largest piece of land. The parties have fought hard over all the pieces of land and their significance cannot be assessed on the basis of size. 
Appeal costs in relation to the Swathe
10.	Here the inverse applies and so we believe the claimants should have 30% of their costs of the appeal.
Should we assess the costs of the appeal?
11.	We have come to the conclusion that this is a case where we can and should summarily assess the cost of the appeal. The issues are clear, the costs estimates of the parties are similar and the case lasted for less one day. This assessment must be carried out on the standard basis because, as we have said, the appeal has raised self contained issues upon which the offer made by the claimants has no bearing. 
12.	Various criticisms are made by each side of costs estimate of the other. The defendants say they have incurred costs of £25,349. We think this is a little too high as result of too much time being spent on attendance on the claimants and on the documents. We also consider counsel’s fees to be unduly generous although we have taken into account that counsel was instructed on a direct access basis. In all the circumstances we consider that a fair and proportionate figure to allow by way of costs is £20,300.
13.	 As for the claimants, they seek £23,926. But this too is, we think, unduly generous and reflects too much time spent on attendances, both of clients and others. Having regard to all the circumstances, we consider that a fair and proportionate figure to allow by way of costs is £19,150.  
14.	So we summarily assess the defendants’ costs at £20,300 and those of the claimants at £19,150. That means that the defendants should have 70% of £20,300, that is to say £14,210; and the claimants should have 30% of £19,150, that is to say £5,745. Setting one off against the other means that the claimants should pay to the defendants £8,465 in respect of the costs of the appeal.
Costs below 
15.	The parties are agreed that the order below must be varied in certain respects. The issues in dispute arise out of two aspects of the order which relate to costs.
16.	First, by paragraph 2, the judge ordered the defendants to pay the costs of the boundary issue on the standard basis up to 30 November 2011 and thereafter on an indemnity basis. The reason for the order for indemnity costs was the offer made by the claimants by letter of 3 November 2011.
17.	Second, by paragraph 5, the judge also ordered the defendants to pay to the claimants £25,000 on account of costs.
18.	We are satisfied both of these orders must be varied. We say that despite the submission made by the claimants that the defendants did not appeal against the decision of the judge to order indemnity costs. As to this, we note that the defendants sought to appeal against the whole of the judge’s order. Further, the judge’s order as to costs is consequential to his decision and order in relation to the substantive issues in dispute.
19.	The costs incurred in relation to the Bank Strip and the Triangle must be reserved to the judge who hears the re-trial. The only possible final order which can be made is in relation to the Swathe, the appeal in respect of this piece of land having been dismissed. However, it is not possible to determine the basis upon which such costs should be assessed because at this stage it cannot be said that the defendants will secure less from the litigation as a whole than the claimants have offered. Accordingly and since the claimants are pursuing their application for indemnity costs, we do not think it is possible for us to make any final order for costs in their favour save for the following:
“The defendants do pay to the Claimants their costs of the Boundary Issue so far as they relate to the Swathe, such costs to be assessed on a basis to be determined by the judge hearing the re-trial, to whom such issue is reserved.”
20.	The next question is whether we should order that the defendants must pay something on account. It seems to be accepted by both sides that they should. The defendants suggest £3,750. The claimants say it should be £10,000.
21.	They arrive at these figures in rather different ways. The claimants start from the judge’s order that £25,000 should be paid on account and say that about 40% of their costs were spent on the Swathe so they should have 40% of £25,000, that is to say £10,000. 
22.	The defendants say that the judge expressed surprise at the level of the claimants’ costs (a little over £100,000) and that he indicated that a reasonable sum to spend on the case was £50,000. He then made an order for half that, that is to say £25,000.  They then say that it is reasonable to apportion 15% of the trial costs to the Swathe and that 15% of 25,000 is £3,750.
23.	We are not at all sure that the defendants are right about this because the judge ordered that the costs of the hearing should be apportioned as to 50% in respect of the boundary issue, and 50% to the next hearing at which he was going to decide various other issues such as damages. Be that as it may and however the judge arrived at his figure of £25,000, he did so having decided that the claimants were entitled to all their costs. So we think that the figure of £25,000 is as good a starting point as any and we consider we should apply to it the same percentage that we attribute to the Swathe on the appeal, that is to say, 30%. That makes a figure of £7,500 which the defendants must pay to the claimants at this stage on account of the costs to which they are entitled.
24.	This must be set-off against the order for the costs on the appeal to which we have referred at [14] above with the result that the claimants must pay to the defendants £965.