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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> IBC Vehicles Ltd v Higgs [2001] EWCA Civ 1650 (24 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1650.html Cite as: [2001] EWCA Civ 1650

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(HIS HONOUR JUDGE FARNWORTH)

		Royal Courts of Justice Strand London WC2 Wednesday, 24th October 2001

Wednesday, 24th October 2001

1. LORD JUSTICE JUDGE: This is an application presented with great skill by Mr Baraclough by the defendant, for permission to appeal to this court against the decision at Luton County Court on 15th March 2001, of Judge Farnworth and two assessors, dismissing the defendant's appeal against District Judge Richardson's determination of points of dispute in relation to the claimant's bill of costs following a successful action decided in March 1999, where the claimant was awarded just under £1,200.
2. This would be a second appeal. Permission will not be given unless either the appeal would raise some important point of principle or practice, or there is some compelling reason for the Court of Appeal to hear it. Mr Baraclough drew our attention to a passage in the White Book under Civil Procedure Rules 52.3.25 suggesting that it is obvious that if the judge, against whose decision the permission to appeal is sought, fell into error and the issue was important to the parties, it would be harsh to tell the losing litigant that he has had one appeal and must go away content with that. In effect, he used that part of the text to suggest that where there was an obvious error by the court below, of itself, that made some compelling reason for the Court of Appeal to grant permission and for a hearing of the appeal to take place. Interesting though that submission was, it is unnecessary to decide it.
3. The relevant issues, and all the relevant issues, including the hearing before Judge Farnworth and his assessors, took place before the then new Civil Justice Reforms took effect; although I notice that certainly some of the argument before Judge Farnworth and his colleagues, and indeed before the District Judge, involved questions of proportionality and so on predicated on the basis that the Civil Justice Reforms were in force.
4. At trial, following the award of damages, costs were ordered to be paid by the defendant, and taxed (if not agreed) on Scale 1 in the county court. That was the scale then appropriate to reflect the sum awarded by way of damages. The judge himself did not grant a certificate under Order 38 Rule 9 of the County Court Rules 1981. When the bill of costs arrived it totalled over £18,000, and understandably (and we make no criticism whatever of the defendant) it was put significantly in issue.
5. The bill of costs began on the basis that this was a Scale 1 taxation, but:

"With an application for the Learned District Judge to exercise discretion to exceed the Scale, notwithstanding that by the time this Bill was drawn the new rules apply whereby Scale 1 no longer applies. It is respectfully submitted that this, in fairness to all concerned, is the best approach to the Taxation/detailed assessment. The Bill has therefore been drawn by a reference to Scale 1 items with the discretion requested as appropriate."

6. After the summary of facts which set out a fairly lengthy history of the litigation, that passage concluded with these words:

"The Learned District Judge is respectfully requested to exercise discretion to exceed Scale, having regard to the novelty, complexity of the matter, the fact the Scale does not provide fair remuneration for the work done and to take into account the conduct of the parties, the defendant's refusal to accept liability or put forward any settlement proposals at all and also to have regard to the number of witnesses and the expert evidence which we had to gather."

7. The response from the defendant was direct and simple:

"The Defendant will submit that this bill is properly prepared on scale one. In this matter all of the work was carried out prior to 26th April 1999 and indeed the authority for detailed assessment is the order of 26th March 1999. In those circumstances it is considered that the District Judge should have regard to the statutory figures contained in scale one."

and ends with these words:

"... the District Judge will therefore be requested to consider whether it is appropriate to cap the fees claimed."

8. Pausing there, the word "cap" came as something as a surprise to Judge Farnworth and his assessors. It does, speaking for myself, to me too, but I suspect that what the defendant's solicitors were driving at was that the total sum claimed was exorbitant and therefore should be capped.
9. The claimant then responded:

"In so far as is appropriate... he will seek the court's discretion to exceed the previous scale of costs."

10. Then there is, in effect, a repetition of the matters which I have set out earlier accompanying the original bill of costs. The District Judge therefore had to carry out his taxing assessment. He had the rival contentions to consider: was this a case for a certificate? He decided that it was, and accordingly exercised his discretion under Order 38 Rule 9.5. There were some other items in dispute, but the reality of the issues before us was whether the certificate should have been granted and given effect by the District Judge, or not.
11. The District Judge produced a written response dated 12th June 2000, setting out the way in which he had approached the problem. He acknowledged that he was asked to exercise his discretion to exceed Scale 1. This was not a lengthy reasoned judgment, simply a note which ultimately covered very nearly three pages. He concluded that he should exercise his discretion subject to some detailed items in the claimant's favour. He then went on:

"The majority of the work done was reasonable and made necessary largely by reason of the Defendant's approach."

12. That decision came before Judge Farnworth and his colleagues. The essence of the argument put before us was this. There is an important decision of this court on 23rd May 1996 on the issue of scales and certificates in the county court from the pre-Civil Justice Reform days, called Daniels v London Borough of Lambeth. The decision sets out in the reasoning of both members of this court the appropriate procedure which should be followed in a case where the question of a certificate arises. It was of course binding on District Judge Richardson, as it was on Judge Farnworth and as it would be on this court.
13. The way in which Mr Baraclough advanced his argument was that if one examines the decision of Judge Farnworth and his colleagues, although there was reference to the principles in Daniels v Lambeth, they were not applied. Summarising his contention briefly, it is not enough for a court to pay lip-service to principles of this kind. The court is obliged to apply them in practice.
14. What is clear from the judgment of Judge Farnworth is that the decision in Daniels was very much in the court's mind. Passages from the judgments both of Beldam and Pill LJJ were cited in the course of the judgment. Speaking for myself, I can see no basis whatever for concluding that Judge Farnworth and his colleagues did not fully examine the Daniels point which was, when all is said and done, the prime point before them for consideration, and then ask themselves the appropriate questions. Indeed, if one looks at the judgment on pages 8 and 9, Judge Farnworth explained the points which seemed to be important in his analysis of the District Judge's decision. Having examined all that material, he then concluded:

"It seems clear to us that he was satisfied on appropriate material that both from the nature of the case and the conduct of the proceedings the costs to be allowed on taxation under scale 1 might be inadequate in the circumstances. We have taken the view that that was an entirely appropriate exercise of his discretion and cannot be criticised. Therefore, he was entitled to proceed on the taxation pursuant to O.38, r.9(2), namely to allow on taxation such larger sum as he thinks reasonable in respect of all or any of the items in the relevant scale except item 5. In respect of this exercise, it is a further discretion. It is argued that in proceeding to allow in taxation such larger sum as he thinks reasonable he should do so by reference to and bearing in mind the scale maximum.

It is quite clear that the District Judge had that in mind. He specifically refers to the scale maximum for instructions in the course of his review..."

15. I shall not read the rest of the judgment, or any further passages from it, save to say that the tribunal concluded unanimously that:

"The District Judge carefully and properly exercised his discretion under both parts of O.38, r.9 which I have referred to. The discretion exercised in our opinion - and I have made use of the extensive practical day to day experience of my co-assessors, to whom I am very grateful - was well within the range which might be expected on the issues which were before the District Judge when considering this bill."

16. Despite Mr Baraclough's persuasive advocacy, I can see no important point of principle or practice involved in the proposed appeal. Nor can I see any compelling reason for allowing the Court of Appeal to proceed to hear the appeal. It seems to me clear that the District Judge exercised his discretion on this taxation, and that the matter was then reviewed properly by Judge Farnworth and his colleagues. The reality is that, although the ultimate decision is one with which the defendants are dissatisfied, there is no basis on which this court could interfere with it.
17. Accordingly, the application for permission should, in my view, be refused.
(Application refused; costs assessed at an agreed figure).