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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 >> Betts v London Borough Of Ealing [2002] EWCA Civ 1696 (5 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1696.html Cite as: [2002] EWCA Civ 1696

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

		Royal Courts of Justice Strand London, WC2 Tuesday, 5th November 2002

1. LORD JUSTICE JUDGE: This is an application made by Mr Stanley Betts for permission to appeal and for an extension of time in which to appeal from a judgment of His Honour Judge McDowell on 14th June 2002. The notice refers to Brentford County Court. The transcript refers to Wandsworth County Court. The issue is not where the decision was made but the decision itself. The judge allowed an appeal by Mr Betts against the issue of a notice under section 189 of the Housing Act 1985 by the London Borough of Ealing, the respondent local authority. At the end of the hearing he ordered that each party should bear its own costs. The present application relates to the order that each party should bear its own costs, including the requirement that each contribute equally to the fees and expenses of an independent expert in building and surveying, jointly appointed by the parties, a Mr Dorset.
2. The issue in the case revolved around Mr Betts' home, 21 Manor Road, West Ealing, which he has occupied for some time, with, I believe, members of his family. It was held by a District Judge at an earlier hearing that, for the purposes of the Housing Act, Mr Betts was the individual in control of the premises. Accordingly, if notices were properly to be served by the local authority about the condition of the property, he was the individual on whom they should be served.
3. The freehold was taken up by a property development company and the local council were then contacted about the state of repair. In early December 1999 a Mr Headley, an environmental health officer employed by the London Borough of Ealing, visited the property. He visited again on 1st March 2000, and in September the notice was set out under section 189 with the requirement of works that the London Borough thought should be carried out. Mr Betts' position before me today, and it looks as though it was before the judge below, was that he accepted that the house needed some repairs, and indeed he was carrying out and doing the necessary repairs. Accordingly, the notice was quite inappropriate. In due course, an independent inspector was asked to report whether the premises were such that they were unfit for human habitation and therefore whether the notice was properly served. That report, again reading from the transcript, was obtained or sought on the basis of the suggestion by Mr Betts himself. Mr Dorset completed his investigation and reported in July 2001.
4. The issue was then before the judge. The judge held in effect that, on the basis of the opinion of Mr Dorset, the condition of the property was not quite sufficient to justify the issuing of a notice under section 189 of the Housing Act. He noted, however, that the factual findings by Mr Headley (that is the environmental health officer) and Mr Dorset, the independent expert, were largely the same but that they had drawn different conclusions from the primary facts. Accordingly, he ruled that the correct course was to quash the existing notice:

"noting, as I have said, that this is not a case of saying that it was completely unjustified; it was to a limited extent justified in absolute terms. It was not unreal in the sense that it was based upon fantasy problems. Every problem which was observed by the local authority appears to me to have existed, and appears on the view of all the experts - and I think also to some extent on the view of Mr Betts himself - to need attention. It is only a question of whether under this particular provision it requires the court to say, 'You will carry out in accordance with these repairs or not'. At this stage the answer is 'No, you do not have to do it', but as I say again, you would in your own interests be very well advised to do it, Mr Betts."

Mr Betts was appearing as the litigant in person and that last remark was plainly directed to him personally.

5. As to costs, the judge's analysis can be found in the two passages to which Mr Betts drew my attention. First, he said;

"Because I have found that the Council had some undoubted justification in taking action, and because of the way in which this is dealt with, I am obviously not going to order you to pay their costs, because I am quashing the notice. But equally, I am not going to order them to pay your costs or refund any contribution, because it seems to me that your own attitude to these matters was excessive, inappropriate and to some extent, as I have found, unjustified."

That was a reference to a passage earlier in his judgment in which he had said that, in the preliminary correspondence and then in the course of the hearing, Mr Betts had made a number of highly offensive aspersions upon the individuals who were dealing with it at the London Borough of Ealing:

"It seems to me that I have extracted from him this afternoon as good an apology as appears to be acceptable in certain political circles these days, but I think, in fairness to him, he has said in terms that he felt he was somewhat excessive in some of the things he said, and I hope that those individuals concerned will not take any finding which I have made as any vindication of these offensive remarks."

6. The second passage to which Mr Betts drew my attention is at the end of the hearing, where Mr Betts said that he had called for the independent expert and that he could not really disagree that one half of Mr Dorset's fees should be paid by Mr Betts himself. The judge went on:

"I have accepted Mr Dorset's evidence, in bulk, he is saying that a lot of things need doing, but not in the context of this bit of legislation, and there are some things which did under this piece of legislation require doing, and it is only because of the limited number of them compared with the notice as a whole that you are not finding yourself doing that now and running the risk of paying a rather heavier contribution."

Finally page 10B, where Mr Betts was concerned about costs. The judge returned to it again:

"Your problems have not gone away, they are at best shelved, and as I say, if you do not want to be having a further hearing, which may go against you, and very expensively against you, I would get on with it. Also, I would recommend very strongly that if there is a next time, you start by going to a lawyer, before things get out of hand. Ealing were willing to negotiate in this case. They would be willing in the future if they saw there was any sign of negotiation. You used a very offensive and unnecessary tone to them last time. Try working with them next time, rather than against them."

7. The way Mr Betts put his submission to me is that he strongly disagreed with the judge's observations. If anybody in this litigation had been unco-operative and inefficient it was not him. It was Ealing. He helped them, for example, by ensuring that the trial bundle was properly lodged when Ealing had been unable or unwilling or had failed to do so. There was misconduct on their part in relation to the litigation. They had, for example, failed to send papers to him or indeed to file appropriate documents with the court. As to the suggestion that he had used intemperate language, he said, by reference to his age, though that is not strictly relevant, that he had been brought up to be blunt and to use words in a robust and direct way in support of his own position, but that could not be said to amount to anything intemperate or abusive. If things are described as they are (I am paraphrasing his submissions), that is attractive and sensible. There is no point, to use a different colloquialism to the one he used to me, in beating about the bush.
8. I understand the way in which Mr Betts puts his case. The problem with the application currently before me is very readily identified. Under the Civil Procedure Rules the court has a wide discretion on the issue of costs. The general rule, but by no means universal principle, is that costs are likely to be ordered against the unsuccessful party, so that the losing party will pay the costs of the winning party, but -- and this is important -- the judge is not allowed to simply let such an order follow as a rubber stamp. He has an obligation to examine all the circumstances of the litigation. Here, in coming to the conclusion that the costs of each side should fall as they rested and that the cost of the independent expert should be shared between the parties, the judge believed that the action in bringing the proceedings to a head by serving the notice had, at least in part, been justified, and that Mr Betts' response had been excessive. As I say, Mr Betts takes a different view about that. He says that the judge got it wrong. The judge believed that this matter was open to constructive discussion and resolution without reference in the end and therefore resort to the court. I understand Mr Betts' sense of grievance. I appreciate the courteous way in which he has addressed me and tried to put me in the position to understand his point of view. I think I do understand it.
9. The issue that I have to decide is whether there is any realistic prospect of this case going to the full Court of Appeal for a full hearing at which the London Borough of Ealing will be represented, and at that stage interfering with the judge's judgment on the issue of costs. This is pre-eminently an area for judicial discretion. The circumstances in which the Court of Appeal would interfere with a costs order are limited. I do not think there is here any realistic prospect of a successful appeal. I refuse the application for permission to appeal. In doing so, for what it is worth, I hope that it will be of some comfort to Mr Betts, though I doubt it will be of much, that at least I will have avoided adding to the burden that would flow from an unsuccessful appeal.
Order: Application refused.