Case No: CH 97/1180/3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(Mr. Justice Robert Walker)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 30th October 1998

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE PILL
LORD JUSTICE MUMMERY

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	(1) ZIPPORAH MAINWARING
(2) ROBERT LISLE	Appellants	
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	GOLDTECH INVESTMENTS LTD.
	Respondent	
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(Handed down transcript of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel: 0171 421 4040  Fax: 404 1424
Official Shorthand Writers to the Court)
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THE FIRST APPELLANT appeared in person.

THE SECOND APPELLANT appeared in person.

MR PETER SHERIDAN QC (instructed by Messrs Lipkin Gorman) appeared on behalf of the Respondent.

MR JEREMY MORGAN appeared as Amicus Curiae.

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	J U D G M E N T
	(As approved by the court)

	©Crown Copyright

LORD JUSTICE PILL  This is another step in prolonged litigation between Ms Mainwaring and Mr Lisle on the one hand and Goldtech Investments Ltd (the respondents) on the other. It is an appeal by Ms Mainwaring against the decision of Robert Walker J on 9 May 1997, following judgments given on that day and on 26 March 1997, whereby the judge made an order the effect of which it is agreed was wholly to disallow the respondents’ costs against Mr Lisle.
	
The appeal raises points on the taxation of costs for the resolution of which it is unnecessary to set out in detail the facts which gave rise to the costs order. In summary, Ms Mainwaring and Mr Lisle were plaintiffs in an action against the respondents which was consolidated with another action in which the parties’ positions were reversed. The orders for costs now relevant were made by Hoffmann J on 13 November 1989 and 4 December 1989. They provided for costs to be taxed if not agreed. The history of the litigation is set out in a judgment of Robert Walker J reported at [1997] 4 All ER 467 which decided issues of taxation not now before the Court. The taxing certificates arising from the orders show taxed amounts for costs of £72, 116.95p for the bill under the earlier order and £1,176.82p for the bill under the later order.
	
It is common ground that, upon the making of the orders for costs by Hoffmann J, Ms Mainwaring and Mr Lisle became jointly and severally liable for the respondents’ taxed costs. The procedure for taxation is set out in RSC O62. By O62 r30(3) a party whose costs are to be taxed must within seven days after beginning the proceedings for taxation send a copy of his bill of costs to every party entitled to be heard on the taxation. That included Mr Lisle as well as Ms Mainwaring because they were both directly liable under orders for costs made against them (O62 r29(8)(a)). Ms Mainwaring and Mr Lisle shared the same address. However, when at a hearing before the Chief Taxing Master on 18 September 1992 the respondents’ solicitors applied for taxation certificates against Mr Lisle, who had not objected to the bills, Ms Mainwaring took the point on his behalf that the bills had not been served on him. That submission was upheld by the Chief Taxing Master and Mr Sheridan QC, for the respondents, accepts that from that date the respondents’ solicitors were on notice that the service on Mr Lisle required by O62 r30(3) had not been effected.
	
That defect was not remedied but on 9 September 1994 taxation certificates were nevertheless served on Mr Lisle as well as on Ms Mainwaring against whom taxation had proceeded. Mr Lisle replied promptly rejecting all certificates and still there was no service upon him. Eventually, on 11 March 1996, Mr Lisle served a summons seeking disallowance of all costs under O62 r 28(4). Upon the hearing of Mr Lisle’s summons on 23 May 1996, it was accepted that he had never been served. The Chief Taxing Master ordered that the copy bills of costs (as so far taxed) sent to Mr Lisle on 29 March 1996 stand as good service as of 23 May 1996. It is common ground that the intention was to permit a “re-run” of the taxation of the bills with Mr Lisle alone having the opportunity to raise further objections. Mr Lisle appealed against that order.
	
On the hearing of the appeal, the result which Robert Walker J sought to achieve was to set aside the whole taxation proceedings against Mr Lisle and him alone. In his judgment of 26 March 1977 the judge stated:
	“More than six years had passed since the orders for costs had been made. For three and a half years the solicitors have been on notice of the failure to serve Mr Lisle. Dozens of hours of the Chief Taxing Master’s time had already been taken up in the taxation process. In the interests of the parties concerned and in the public interest it was time to make an end of the matter.”

Having heard further argument, the judge on 9 May 1997 contemplated an order setting aside the taxation proceedings and certificates as against Mr Lisle: “If I make such an order but it is expressed not to alter Ms Mainwaring’s liability then unless the Court of Appeal decides that I have not power to make or ought not to make such an order she cannot and will not be released. Such a result would be contrary, it seems to me, to principle, precedent and common sense.  I cannot accept that justice or equity requires that the taxation proceedings should be set aside or the certified sums be further reduced as against Ms Mainwaring. On the contrary, I think that justice and equity requires that I should set aside the proceedings and certificates against Mr Lisle alone and that is what I shall do. I shall order that the certificates in respect of [the bills] should be amended or reissued in a form which names Ms Mainwaring as the only paying party and by substituting the revised figures which I have already mentioned and which I understand to be agreed. The taxation proceedings against Mr Lisle and the certificates as against him are wholly set aside and if there is any shadow of doubt about that, that fact should be expressly endorsed on the amended or re-issued certificates”.
	
The issues which now arise do not require more detailed analysis of past issues and submissions. It is agreed that the effect of the judge’s order was wholly to disallow costs against Mr Lisle within the meaning of that expression in O62 r28(4). The judge was under the impression that Ms Mainwaring could not, and would not, claim contribution against Mr Lisle, and Ms Mainwaring in her submissions frankly admits that she may have “muddled” the judge on that point. The judge may have been influenced by an apparent concession. Moreover, with respect, he does not appear to have considered the possible injustice to Ms Mainwaring, if there was no right of contribution, of having to pay all instead of half the costs in circumstances where the relevant default was not hers but that of the respondents’ solicitors.

O62 r30 provides:
	“(4) Where, in beginning or purporting to begin any taxation proceedings or at any stage in the course of or in connection with those proceedings, there has been a failure to comply with the requirements of this Order, whether in respect of time or in any other respect, the failure shall be treated as an irregularity and shall not nullify the taxation proceedings or any step taken in those proceedings.

	(5) The taxing officer may on the ground that there has been such a failure as is mentioned in paragraph (4), and on such terms as he thinks just, set aside either wholly or in part the taxation proceedings or exercise his powers under this Order to make such order (if any) dealing with the taxation proceedings generally as he thinks fit.”

O62 r 28(4) provides insofar as is material:

	“(4) 	Where a party entitled to costs—

	 (a)	fails without good reason to commence or conduct proceedings for the taxation of those costs in accordance with this Order or any direction, or

  	 (b) 	delays lodging a bill of costs for taxation.

	the taxing officer may—

		(i) 	disallow all or part of the cost of taxation that he would otherwise have awarded that party; and

		(ii) 	after taking into account all the  circumstances (including any prejudice suffered by any other party as a result of  such failure or delay, as the case may be, and any additional interest payable under  section 17 of the Judgments Act 1838 because of the failure of delay), allow the  party so entitled less than the amount he would otherwise have allowed on taxation  of the bill or wholly disallow the costs.”

Mr Sheridan’s first submission is that the closing words of r 30(5) empower the taxing officer to take the course which the judge did on appeal to him. The wide discretion in the paragraph permitted the judge to discharge Mr Lisle’s liability and his alone.
	
In my judgment, setting aside the existing taxation proceedings, under r 30(5), would not prevent the commencement of a further taxation. Moreover, the words “make such order (if any) dealing with the taxation proceedings generally as he thinks fit” must be read with the preceding words “exercise his powers under this Order”. Upon a paragraph (4) failure, the taxing officer is not empowered under paragraph (5) to extinguish a party’s liability to costs but may exercise powers conferred elsewhere in the Order. That takes the Court to the powers under r28(4) on which the case turns. 
 	
It is common ground that the orders for costs made by Hoffmann J created in Ms Mainwaring and Mr Lisle a joint and several liability. By virtue of the common law rule, one person under a joint liability for debt is released by the discharge of the other (In re EWA [1901] 2 KB 642). The common law rule was upheld, not without reluctance, in this Court in Watts v Aldington (unreported, 15 December 1993). It is subject to the exception that the creditor may agree with a joint debtor to release him but reserve in the agreement his rights against the other tortfeasor (In re EWA p 649 and Watts v Aldington per Steyn LJ).  However, it is also common ground that, subject to argument on the effect of r 28(4), the function of a taxing master, and of the Court on review of taxation, is to tax costs which is a process of pure quantification. 
 	
Miss Mainwaring, who appeared in person, made submissions which were both clear and succinct. The issue has nothing to do with the merits but with the application of the law and construction of the rules. By way of exception to the common law rule, it would have been open to the respondents to reach an agreement with Mr Lisle which would have released him while preserving their right to costs against her. However they did not seek such an agreement but pursued Mr Lisle for costs as long and as far as they could. Because liability under the 1989 orders for costs was joint, she too was released from liability under these orders by the release of Mr Lisle by order of the Court. That was the effect of the disallowance under r28(4) combined with the operation of the common law rule with respect to a joint debt.
 	
In the circumstances, questions of contribution did not arise, it is submitted, and that was consistent with the intention of the rules. O 62 provided a procedure which the party seeking taxation was required to follow. In this case,  the respondents failed to serve Mr Lisle for a period of six years, for most of which they were on notice that they had not served. The default was theirs. In the absence of a right to contribution, the judge’s order was unfair to Ms Mainwaring who had not defaulted but who would have to bear the entire costs. If a right of contribution survived, as contended by Mr Sheridan, that was unfair to Mr Lisle who would have to meet half the costs notwithstanding the respondents’ solicitors’ default and the judge’s intentions.
 	
Mr Morgan appeared as amicus curiae, at the request of the Court granting leave to appeal, and substantially supported the submissions of Ms Mainwaring. Taxation procedure under O62 is based on a single bill of costs and is designed to produce a single certificate, under O60 r22(1), for the costs allowed by the taxing officer. R28(4) did not empower a taxing officer to leave a certificate subsisting against one party subject to an order for costs while setting it aside for a second party, it is submitted. 
 	
Mr Sheridan’s central submission can also be put shortly. He accepts and asserts that the issue is one of powers and not of discretion. O62 r28(4) empowers the court wholly to disallow costs with respect to one defendant while preserving the liability of the other under the certificate. The effect of the judge’s order was to put the parties in the position they would have been had taxation proceedings not been commenced against Mr Lisle. The orders for costs made by Hoffmann J subsisted and Ms Mainwaring retained her common law right to seek contribution from Mr Lisle notwithstanding the order under r28(4) wholly disallowing costs against him. (It is not suggested that there is a right to contribution under the Civil Liability (Contributions) Act 1978. The liability is a debt and not covered by the Act.) The law permitted an agreement between the respondents and Mr Lisle to release him while reserving their rights against Ms Mainwaring and the order under r28(4) should be construed as having the same effect. 
 	
The Court is not invited to reconsider the findings of the court below as to the fact or extent of the default of the respondents by their solicitors in failing to serve Mr Lisle for a very long time. It is accepted that the default entitled the Court to disallow costs against Mr Lisle. It is not suggested that Ms Mainwaring’s awareness of the default should influence the outcome of the appeal. Mr Morgan submits that what should be regarded as the “fair” result is one in which Mr Lisle is released altogether and Ms Mainwaring bears one half of the costs but submits that the rules do not permit that result.
 	
There is no doubt that, as between the respondents and Mr Lisle, he is under no further liability for costs. The issues for the Court, which I consider to be related, are whether the judge’s order in relation to Mr Lisle necessarily extinguishes Ms Mainwaring’s liability to the respondents in costs and, if not, whether it is open to her to seek contribution on the ground that the joint orders for costs made by Hoffmann J subsist. The two are related because it may be seen as a fetter upon the r 28(4) power if a defendant who has obtained a disallowance remains liable to contribution proceedings by a co-defendant. That disallowance is the starting point because there is no appeal against it.
 	
In my judgment, the existence of the common law rule runs together with the unlikelihood of the rules being intended to create a situation in which a defendant who has  a r 28(4) order, wholly disallowing costs, in his favour (and in this case who has not been a party to the taxation proceedings) being liable to contribute. They together go to confirm that the intention of the rule is that disallowance of costs against Mr Lisle has the effect of disallowing costs against the joint debtor Ms Mainwaring. Each order of Hoffmann J was for costs to be taxed (if not agreed). In the absence of agreement, a taxation in accordance with the rules is necessary if money is to be recovered under the Order. Upon a nil taxation in accordance with the rules, the joint debt created by the order in my judgment ceases to exist.
 	
This may be considered an undeserved windfall for Ms Mainwaring but appears to me the least unsatisfactory result following  the serious default of the respondents by their solicitors. It would only be in an extreme case, such as the present, in which a taxing officer would wholly disallow costs against a party and there can be no legitimate complaint if the joint debtor is also released.
 	
I am fortified in this view by the procedure described in rules 22, 28, 29 and 30. There is a single bill of costs and the procedure leads to a single certificate. Rule 28 permits the taxing officer to disallow costs that he would otherwise have awarded. It approaches the subject by providing for a reduction in the amount to be awarded or allowed to the receiving party under the single bill and does not seek to provide for shades of liability as between paying parties.
 	
The judge was concerned about the implications of such a combination for multi-party actions. If one of many unsuccessful plaintiffs was not served, disallowance against him would involve disallowance against the other plaintiffs. I accept that difficulties may arise in such actions but there is no escaping the obligation under O62 r30(3) to serve every other party entitled to be heard. Further, the taxing officer must under r 28(4) take into account “all the circumstances” and courses other than disallowance of costs against the unserved plaintiff will usually be appropriate. The possible difficulties faced by a party seeking to tax do not lead me take the view of r 28(4) advocated by Mr Sheridan.
 	
I would allow this appeal and order that the taxing certificates be reissued so as to 
show the sum of costs allowed as nil on both certificates. 

LORD JUSTICE MUMMERY:  Both Ms Mainwaring and Goldtech Investments Ltd (Goldtech) are realistic and prudent in their reluctance to claim merit for their stance on this appeal.
 	
On the one hand, the problem posed to the Chief Taxing Master, to Robert Walker J and to this Court would never have arisen if Goldtech's solicitors had complied with the provisions of Order 62 Rule 29(8)(a) and served Mr Lisle, as well as Ms Mainwaring, with  a copy of the bill of costs at the commencement of the taxation proceedings.
 	
On the other hand, Ms Mainwaring,who was served with the bill of costs in accordance with the rules and then fully participated in the taxation proceedings quantifying the costs, now seeks to escape all liability for costs by relying on an irregularity in the failure to serve Mr Lisle (whose address was at all material times the same as Ms Mainwaring's); and it is an irregularity which does not nullify the taxation proceedings or any step taken in those proceedings against her or Mr Lisle (Order 62 Rule 30(4)).
 	
Mr Lisle has some merit. It would be unjust, at this distance in time from the making of the costs orders in 1989, to allow Goldtech to begin to tax the costs against him.  There is a possible further injustice to Mr Lisle in his remaining indirectly liable for the costs via a contribution claim against him by Ms Mainwaring.
 	
The critical question in this case, on which my views have fluctuated both during the course of and since the conclusion of argument, is whether it is permissible under the provisions of Order 62 to achieve the result which Robert Walker J sought to achieve. That result has much to commend it on the grounds of common sense and justice: the taxed costs could not be recovered by Goldtech from Mr Lisle, but could be recovered from Ms Mainwaring.
 	
I agree that:
(1)  In so far as Robert Walker J purported to act under Order 62 Rule 30(5) it was not possible to achieve that result.  Setting aside the  whole or part of the taxation proceedings as against Mr Lisle would simply produce a position in which Goldtech could pursue the taxation proceedings against him.  The reference at the end of Order 62 Rule 30(5) to
 	"such order (if any) dealing with the taxation proceedings generally  as he thinks fit".
is confined to the powers which the Taxing Master is entitled to exercise under Order 62.

(2) The only relevant power which the Taxing officer could exercise under Order 62 to achieve that result is Order 62 Rule 28(4).  That provision permits the court to disallow all the costs against the paying party.  It does not permit the court to set aside, cancel or vary the joint and several liability of Ms Mainwaring or Mr Lisle created by the orders of Hoffmann J on  13 November and 4 December 1989 in respect of the costs to be taxed under that order.  The result contended for by Ms Mainwaring (and supported by the amicus) might appear to produce a situation in which the joint and several liability of Ms Mainwaring and Mr Lisle for the taxed costs is cancelled by the order which they seek i.e. that neither is liable to pay any costs to Goldtech, even though earlier ordered to do so.
 
Like my Lords, I see no escape, however, from the conclusion that the  effect of disallowing all the costs against Mr Lisle, which is permissible under rule 28(4) and is not the subject of any cross appeal by Goldtech, is that, in the case of a single bill of costs, Ms Mainwaring cannot be treated any differently in respect of her liability under that bill.  I am persuaded, reluctantly, that the provisions of Order 62 do not permit a result which would preserve the liability of Ms Mainwaring to pay the whole or part of the taxed costs which she was ordered to pay and in respect of which her objections were voiced and adjudicated upon in the taxation proceedings.
 
I would also allow the appeal. I agree with the form of order proposed by Pill LJ.

LORD JUSTICE PETER GIBSON:  I agree that this appeal should be allowed.  As we are differing from the judge, I will express my reasons in my own words.

By the order of Robert Walker J. on 9 May 1997 it was ordered (inter alia) that the taxation proceedings and taxing certificates arising from two orders of Hoffmann J. (ordering the Plaintiffs, Ms Mainwaring and Mr. Lisle, to pay Lipkin Gorman costs to be taxed if not agreed) be set aside as against Mr. Lisle alone and that the taxing certificates be reissued to show the taxed amounts for costs as £72,116.95 and £1,176.82 respectively but that the certificates be endorsed to show that they were not enforceable against Mr. Lisle.  The judge made clear in his judgment that Ms Mainwaring was to be left as the only paying party.  The issue raised by this appeal is whether the judge had the power to make that order.

It is not in dispute that the orders of Hoffmann J. caused Ms Mainwaring and Mr. Lisle to become jointly and severally liable to Lipkin Gorman for the costs which, if not agreed (and they were never agreed), had to be taxed if a quantified liability was ever to come into being.  That required Lipkin Gorman to follow the procedure prescribed for such taxation in Part V of O.62.  Of particular relevance is the mandatory requirement that a party whose costs are to be taxed must within 7 days after beginning the proceedings for taxation send a copy of his bill of costs to every other party entitled to be heard on the taxation.  Plainly Mr. Lisle was so entitled (O.62 r.29(8)(a)), but Lipkin Gorman, who served Ms Mainwaring alone (a little late on 30 May 1990), by not serving Mr. Lisle until 23 May 1996 flouted that requirement.

The matter came before the judge by way of an appeal by Mr. Lisle under O.62 r.28(5), that is to say as an appeal from the exercise by a taxing officer of the powers conferred by r.28.  It was not an appeal under O.62 r.35 from a decision on a review under O.62 r.34 and so the provisions of r.35 are not in point.  R.28(5) does not spell out the powers of a judge on an appeal under that paragraph, but I see no reason to disagree with the view taken by the judge that he would have the powers conferred on a taxing officer under r.28(4) as well as any other power which is conferred on a taxing officer and the conditions for the exercise of which are satisfied.  It is plain that the failure to serve the bill of costs on Mr. Lisle as provided for by r.30(3) was both a failure by Lipkin Gorman without good reason to conduct proceedings for the taxation of their costs in accordance with O.62 for the purposes of r.28(4) and a failure to comply with the requirements of O.62 for the purposes of r.30(4).

The judge therefore on the appeal under r.28(5) had the power to disallow the costs of the bill in part or in whole and the power under r.30(5) to set aside the taxation proceedings either wholly or in part or to exercise his powers under O.62 to make such order (if any) dealing with the taxation proceedings generally as he thought fit.

The judge purported to act under r.30(5) alone or under r.30(5) combined with r.28(4).   Certainly the form of the order which was drawn up suggests that the judge was acting under r.30(5) in ordering that the taxation proceedings be set aside as against Mr. Lisle.  But that order left Lipkin Gorman in continuing breach of their obligation under r.30(3), so long as the taxation proceedings relating to their bill of costs remained subsisting against Ms Mainwaring, and Lipkin Gorman could serve the bill of costs on Mr. Lisle again out of time, such failure to serve timeously being again a mere irregularity unless and until that service was set aside.  In other words, the finality which the judge plainly sought to achieve could not be achieved by that power alone.  In substance the order of the judge was directed to achieving the permanent disallowance of the costs in the bill of costs as against Mr. Lisle, and it may be that it was in recognition of this that Mr. Sheridan Q.C., for Lipkin Gorman, addressed us on the basis that the judge was exercising the power in the second limb of r.30(5).  That, he said, enabled the judge to make such order dealing with the taxation proceedings generally as he thought fit or if the judge had to exercise a power specifically conferred by O.62, r.28(4) was the relevant power.

The first way in which Mr. Sheridan put the case seems to me to be an impossible one in view of the language of r.30(5).  He thereby ignores the words "exercise his powers under this Order".  That requires the identification and exercise of a specific power under O.62.  The only relevant power is r.28(4).  But the difficulty with the use of r.28(4) in a case where two persons are jointly and severally liable for costs is that there can only be one bill of costs to be taxed.  If all or any of the costs in that bill are disallowed against one person, they must be disallowed against the other too.  R.28(4) gives no hint that what the judge did is contemplated by the rule.  I take the reason underlying the requirement of service of the bill of costs on every party entitled to be heard to be that everyone interested in the taxation of that bill is to have the opportunity to make representations and will be bound by the taxing officer's decision.

A further important consideration is the effect of an order such as that made by the judge on the right of one person with joint liability for a debt to a contribution from the other or others with whom he is jointly liable when that person pays more than his share of the debt.  With respect to the judge, it is not clear from his judgment on 9 May 1997 what effect he thought his order would have on Ms Mainwaring's right to a contribution from Mr. Lisle if she paid the taxed costs.  The judge quoted from his earlier judgment on 26 March 1997, citing a passage which expressly referred to "likely contribution claims" against Mr. Lisle and it may be that the judge thought that his order did not affect Ms Mainwaring's right to a contribution.  Further, as Pill L.J. has pointed out, the judge may have thought the point a theoretical rather than a practical consideration.  But as Mr. Morgan in his helpful submissions as amicus submitted, the effect of the order causes an injustice in any event to a person who in the taxation has been an innocent party.  The right to a contribution may have gone, because the order left the liability to costs quantified in the substantial sums shown in the taxing certificates so far as Ms Mainwaring was concerned but caused the liability to be quantified as, in effect, nil so far as Mr. Lisle is concerned.  Thus the result of the judge's order is that they are not joint debtors in the same quantified sum as Lipkin Gorman cannot recover any costs from Mr. Lisle.  This is an outcome which could hardly have been envisaged when Hoffmann J. made his order against both Ms Mainwaring and Mr. Lisle and arguably destroys the basis of the right to contribution.  If in these circumstances Ms Mainwaring has no right of contribution, she will be penalised by alone being liable for the full amount of the costs.  Or the right to a contribution may continue to subsist, in which case Mr. Lisle will suffer because he has been excluded from the taxation by Lipkin Gorman's disregard of r.30(3) and may be held liable to Ms Mainwaring in a sum quantified in taxation proceedings to which he should have been but, through Lipkin Gorman's default, was not made a party.  In short, he has been denied the opportunity, envisaged by Hoffmann J.'s order that the costs were to be taxed if not agreed, to challenge the quantification.

In my judgment the answer to the problem in this case lies in the fact that the effect of the judge's order is that there has been a disallowance by the judge of the whole of the bill of costs, purportedly as against Mr. Lisle alone, and Lipkin Gorman, having initially appealed that order, have abandoned that appeal.  If the costs in that bill are disallowed against Mr. Lisle, they must, in my judgment, under the rules as they now stand, be disallowed against Ms Mainwaring too, there being but one bill of costs.  I of course understand why the judge believed such a result to be contrary to common sense (though I am not aware of the principle or the precedent to which the judge thought it was also contrary).  But whilst I would have liked to achieve a result less severe for Lipkin Gorman, I do not believe that the rules permit a half-way house whereby Ms Mainwaring is alone liable for a reduced sum, and Lipkin Gorman, by their unexplained disregard of the rules, not Ms Mainwaring nor Mr. Lisle, have caused the unsatisfactory position in which they now find themselves.  Those who ignore the time limits which are prescribed by the rules and which are designed to achieve the convenient disposal of proceedings within a reasonable time do so at their peril.

I therefore agree with the order proposed by Pill L.J.
	                    
	    Order: 	Appeal allowed with costs here and below;  
			order as per judgment of Pill LJ;  application
			for leave to appeal to the House of Lords refused.