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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Carr v Bemrose & Anor [2001] EWCA Civ 194 (7 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/194.html Cite as: [2001] EWCA Civ 194 |
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ON APPEAL FROM BRIDGWATER COUNTY COURT
(His Honour Judge O'Malley)
The Strand London WC2A Wednesday 7 February 2001 |
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B e f o r e :
SIR RONALD WATERHOUSE
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ANTHONY R L CARR | Claimant/Appellant | |
and: | ||
(1) SAMUEL R C BEMROSE | ||
(2) NONI BEMROSE | Defendants/Respondents |
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MS A TIPPLES (Clarke Willmott & Clarke, Blackbrook Gate, Blackbrook Park Avenue, Taunton, Somerset) appeared on behalf of the Respondents
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Crown Copyright ©
Wednesday 7 February 2001
"As to the appeal against the district judge's order for costs it is impossible to fault the exercise of her discretion. She had the opportunity of assessing the parties and their responses at various stages of the litigation. She was alive to the issue of costs and the relevance to costs of the parties' actions. There are no grounds for interfering with her order.
It follows that the appeal must be dismissed. The appellant must pay the costs of the appeal."
"At this stage I merely say that it is arguable that the claimant ought to have got his costs up to and including 13th January 1999 or some substantial part of them. Mr Jack [then counsel for Mr Carr] points out, however, that the offer then made did not provide for the claimant's costs. It was a term of the offer that each side should bear its own costs. So it may be arguable that the claimant ought to have obtained a still more favourable order for costs."
"Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."
"1. Mr and Mrs Bemrose shall enter into restrictive covenants in favour of you which provide for the conservatory not to be locked at any time unless agreed otherwise.
2. Our clients will meet the costs incurred in drawing up the restrictive covenant
3. Both parties shall meet their own costs of the proceedings to date".
"You have refused to accept what our clients regard as extremely reasonable offers of settlement. We have advised our clients that they have a very strong defence and that the offer set out in this letter is a considerable concession on their part."
"(a) to construct a conservatory that would leave the inspection chamber outside so that it was free to be used when required; or
(b) to investigate and propose an alternative means of conveying the foul [sewage] together with any necessary inspection chamber(s) outside the proposed construction with clear access so that there was no diminution of our client's easement; or
(c) to ensure that the conservatory was so constructed that the area that contained the inspection chamber provided a suitable working space and immediate access for our client to exercise his legal rights.
The present situation is such that alternative (a) appears never to have been considered, alternative (b) has been extensively investigated but is technically impossible to achieve - which leaves only alternative (c) as a way forward (unless your clients are willing to demolish a sufficient length of the conservatory to satisfy alternative (a)).
If alternative (c) is to be the way forward then your clients should remove the wall (with the door or doors and windows) for at least a third of its length along the front of their conservatory nearest to our client's property and then build a returned wall from the new end point back to the original wall of the building thereby creating a roofed open area which could, reasonably, have a flagstone floor or similar and would provide an attractive 'outdoor' sitting and/or eating area for your clients.
The cost of achieving these alterations would be entirely that of your clients - as would be the costs of this action, to be paid on an indemnity basis and taxed in default of agreement."
"The plaintiff's claim is for:-
an injunction to restrain the Defendants by themselves or their servants or agents or workmen or otherwise howsoever from proceeding with the erection of a building over the inspection chamber and drainage pipes on under or through the Defendants' land and from doing any other acts (and taking such steps as may be necessary) which will deprive the Plaintiff of his right of access to the said inspection chamber and drainage pipes for the purpose of effecting repairs and otherwise interfering with his rights."
"Insofar as it is relevant, today Mr Norman, on behalf of [Mr Carr], seeks to amend the wording of the injunction to an order requiring removal of the building over the enclosed inspection chamber to such extent as to ensure that the inspection chamber is external to the building and to provide an area in the inspection chamber, as I understand it, to allow surface water drainage."
"The building was not erected when proceedings commenced. The relief that was sought in the particulars of claim was an injunction to restrain the defendants from proceeding with the erection of a building. I know my learned friend will reserve the right to address your Honour on the wording of any injunction that there might be, but may I at this stage simply propose that it should be to remove the building over the inspection chamber to such extent as may be necessary to ensure that the inspection chamber is external to any building. I have been asked also to add to that 'and to provide the area where the inspection chamber is with surface water drainage.' That is because there is a problem about an upstand and therefore one wants to avoid the difficulty of there not being any run-off."
". . . I do not ask for an order for costs in favour of Mr Carr because he has not succeeded, my submission is that this is a proper case under the new rules [the Civil Procedure Rules, which had come into force on 26 April, between the date of the first day of the trial and the adjourned hearing] which your Honour can order, for no order as to costs throughout. That would properly reflect, in my submission, the conduct of the parties in the light of your Honour's judgment and the consequences that that has had upon the litigation, firstly commencing and secondly continuing."
"I have already directed myself to Part 44(3) [sic] in its entirety. This is the type of case in which the court should not rest on 44.3(2)(a) [of the Civil Procedure Rules], the general rule that the unsuccessful party will be ordered to pay the costs of the successful party, but to consider all the circumstances which under (4) are described as the conduct of the parties defined in (b), whether a party has succeeded on the part of his case and any other offers whether or not made in part 36 terms.
I take the view that on conduct there is little to choose between the parties up to the issue of the proceedings and that each brought the costs of the proceedings on themselves. I make no order for costs on that principle up to issue.
At issue I look at when did the defendant put forward largely what I have decided today and I find that that was available to the claimant from 13th January 1999. I therefore have a choice in my mind as to whether I say that the defendant has his costs in defending the action and I do a discount, or whether I make the order from a date. For the reasons that I have already discussed with your Counsel, I make no order as to the costs of the action up to 13th January and from 13th January to the date of the adjourned trial, the claimant do pay the defendant's costs, to be subject to detailed assessment if not agreed."
"Then the order is simply the claimant's claim dismissed and no order for costs after 13th January. Then claimant do pay the defendant's costs from 13th January to date. . ."
1. I am in no doubt that it was in the power of the district judge to apply the provisions of the Civil Procedure Rules. That was the basis upon which Mr Norman had made the application for costs. I would also add that, even if the matter were to be argued under the old rules, the position would, for the reasons which I will explain, produce the same result.
2. Miss Hutton is in a substantial forensic difficulty in advancing her argument. In substance, she is attacking the exercise of a discretion by the trial judge in not making in her client's favour a more favourable order than her client's then counsel asked the judge to make. Mr Norman asked for an order that there be no costs throughout. The district judge acceded to this argument in part by making no order no respect of the costs before 13 January 1999. Miss Hutton now argues that the judge's discretion was flawed because she should have made an order for costs in favour of Mr Carr throughout or, at least, for the period after 13 January. This argument invites the question, how can the judge have been in error in not making an order more generous than was being sought? In fact I am satisfied that the judge properly exercised her discretion in not making the order asked for by Mr Norman.
3. Looking at the Civil Procedure Rules, I have already referred to Part 44.3(2), a which provides that:
"If the court decides to make an order about costs -
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order."
4. I look at the next thing that the district judge was entitled to do. That is to consider whether, and if so to what extent, to make a different order from the general rule of costs following the event. In exercising that discretion under 44.4 the court is required to have regard to all the circumstances, including the conduct of the parties, whether the success has been total or partial, and what offers have been made to settle.