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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 >> Marsden v Elston & Anor [2002] EWCA Civ 866 (31 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/866.html Cite as: [2002] EWCA Civ 866

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(His Honour Judge Dedman)

		Royal Courts of Justice Strand London WC2A 2LL Friday 31st May 2002

Friday, 31st May 2002

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: On 5th November 2001 this court allowed an appeal in part from His Honour Judge Dedman's order whereby he gave judgment for the claimant in the sum of £42,000 odd plus interest. This court ordered that the claimant recover only £8,000 odd plus interest. We made a costs order in respect of the costs in this court. It was understood by this court that by common consent the costs order below should stand. In the court below the judge had given the claimant costs. The action originally was allocated to the fast-track, but at the outset of the hearing before the judge he reallocated the case to the multi-track because of its size and complexity. So the costs order made by the judge was on the multi-track basis, not costs on the fast-track basis.
2. The order drawn by this court, however, was incorrect in that it purported to set aside the judge's order, including the order for costs. When the parties' solicitors corresponded about the correction to be made, the defendants took the point that now that this court had reduced the judgment sum the judge's costs order on a multi-track basis no longer applied. That was not a point taken before this court in November. Because agreement could not be reached between the parties, the matter has had to be restored before us.
3. Mr Yell for the claimants says that it is too late now for the defendants to take this point. The defendants did not object to the judge's allocation to the multi-track. There was no cross-appeal on that. He says that it is irrelevant that as a result of the appeal the claimants have recovered less than £15,000. He concedes that there is nothing to prevent the defendants making representations as to the reasonableness of the claimant's costs or the proportionality of those costs when the costs are assessed, But he says that there is no reason why the costs allocated to the claimant on the multi-track basis should become costs on a fast-track basis as a result of the appeal.
4. Mr Lindqvist for the defendants submits to the contrary. He says that it is open to him to argue that when the assessment takes place the costs should be on the basis that the amount awarded was appropriate to a fast-track case. He therefore asks this court to make a fresh order that the defendants pay the claimant's costs below to be subject to a detailed assessment if not agreed.
5. I agree with Mr Yell. It was, as I have said, the understanding of this court that the judge's order on costs below should stand, and that order was on the multi-track basis. It was not argued by Mr Lindqvist in November that there should be any change in that basis. He is free on the assessment to say that the claimant's costs should be proportionate to the amount recovered. In my judgment the order of this court should be corrected to give effect to the intention of the court, that is to say that the costs order below in favour of the claimant should stand.
6. LORD JUSTICE LAWS: I agree entirely.
7. LORD JUSTICE LONGMORE: I agree.
Order: As above. The respondent to have its costs occasioned by the relisting of the case subject to public funding assessment on the standard basis.