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This Report is referred to in: Factortame v Sec of State for Trade (costs) [2].
Neutral Citation Number: [2002] EWCA Civ 22
Case No: A1/2000/3152

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Toulmin CMG QC

Royal Courts of Justice
Strand,
London, WC2 A 2LL
28 January 2002

Before:

LORD JUSTICE SIMON BROWN
Vice President of the Court of Appeal
Civil Division
LORD JUSTICE WALLER
and
LORD JUSTICE SEDLEY
Factortame Ltd & Ors
Appellants

- and -

The Secretary of State for Transport
(Now the Secretary of State for the Environment, Transport and the Regions)
Respondent

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4 A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nicholas Strauss QC and Jonathan Middleburgh (instructed by Messrs Edwin Coe for the Appellants)
David P Friedman QC and Miss Rachel Ansell (instructed by the Treasury Solicitor for the Respondent)
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT

Crown Copyright ©

   Lord Justice Waller : Introduction
1.   This is an appeal by certain claimants from part of the order of Judge Toulmin CMG QC dated 27 July 2000 in relation to costs. It is said to raise a point of principle in relation to the approach of the court to Part 36 offers. Mr Strauss QC for the appellants would suggest that the point of principle can be expressed in this way:
   “Where (a) a defendant makes a Part 36 payment which the claimant does not accept, (b) the defendant then makes a significant amendment to his case on the basis of information which had always been available to him, and (c) the claimant then promptly accepts the Part 36 payment which he has previously refused, in general the answer should be that the claimant is the successful party.”
   He would suggest that the judge failed to have regard to that principle. Mr Friedman QC on the other hand would suggest that although it must be a relevant consideration that a party has amended his case just prior to the acceptance of a Part 36 offer, it is for the judge to assess the extent to which that amendment should dislodge the prima facie position that a person who has failed to beat the payment-in should pay the costs from the date on which the payment-in should have been accepted.
   Background
2.   The judge in his judgment set out the full history of what has been termed the “Factortame litigation”. Following a decision in the course of that litigation that the Government (defendants/respondents) was liable to compensate the claimants, the assessment of the damages was put in the hands of the Technology and Construction Court. In that court certain claimants became fast-track claimants and others slow-track claimants. Some fast-track claimants were represented by Thomas Cooper & Stibbard and some by Edwin Coe and as a result became known generically as the TCS and EC claimants. All the fast-track claimants ultimately accepted, or were permitted by the defendants to accept, Part 36 offers made by reference to different issues, but they accepted them at different stages of the litigation. There was no agreement as to the costs implications if permission was given to accept the offers. That was left to the court. The judge in his judgment of 27 July 2000 was thus concerned to deal with orders for costs in relation to various issues in the context of various Part 36 offers accepted at various stages of the litigation with the consent of the defendants all outside the 21 day time limit given by Part 36. The only point live on this appeal relates to the judge’s order for costs on one issue - the assessment of damages for what was called period 2. It concerns the EC claimants only. They were permitted by the defendants (subject to the court ruling on costs) to accept on 17th April 2000 a Part 36 payment made on 17th December 1999. The 17th April 2000 was at the very end of the trial. It was also only a day or so after the judge had ruled certain evidence admissible which evidence might have reduced the damages recoverable by the EC claimants for period 2. It was (I should stress) accepted by the defendants that the figures that they were seeking to place in evidence had, through an error on their part, not been supplied to the claimants as early as they should have been. The figures were calculated from material within the control of the defendants. They thus could have been available even before the dates of the payment in. The defendants carried out the research on the material within their possession only at a stage after 17th December 1999. They actually had the relevant figures by 28th February 2000 which they intended the claimants to have at that stage. By a mistake for which they were entirely responsible, the figures were not handed over until 5th April 2000.
3.   It will be seen immediately how the battle lines would be likely to be drawn. The EC claimants submitted that a material change in the case of the defendants brought about by a mistake on their part, should entitle them to reassess a Part 36 payment, and allow them to take the payment out with an order for costs right up to the date of the ultimate acceptance. The defendants’ submission on the other hand was that it was not the material change in the defendants’ case which had made all the difference; that simply provided an excuse to take the money out having regard to the way in which the case had gone at the trial, now nearly completed. Thus the submission was that the EC complainants should accept the normal consequences of failing to beat the payment in and pay costs since the date when the payment in should have been accepted.
4.   The judge’s ruling I will set out. But to understand it fully I must explain that so far as the TCS claimants were concerned, they had been permitted to accept Part 36 payments before any amendment in the defendants’ case. Their argument had simply been that it would be unfair to take the view that in complex litigation such as this 21 days from the date of payment in was a sufficient period in which to consider the offers from the defendants. This argument was also supported as an alternative to their main argument by the EC claimants. On that point the judge had ruled that there was merit in the claimants’ point and found that 7th February was the date on which the payments in should have been accepted. On the point relating to the effect of the amendment he ruled as follows:
  
   “The Edwin Coe applicants have a separate argument on costs. They say that the information on revised catch data mitigating income, which they only received on 5th April 2000 (but which they should have received on 28th February 2000) changed fundamentally the nature of the claim, in that it had the effect of reducing significantly the sums which the Edwin Coe applicants were entitled to receive for period 2 losses. They say that the Government should pay all their costs in relation to these issues. They say, as I have already set out, that the fact that this information was decisive in their decision to accept the Part 36 payments is to be inferred from the fact that they sought a ruling from me on the admissibility of the evidence on Day 22 of the trial, and that they accepted the payments a few days after I had ruled that the evidence was admissible.
   The Government says that if one considers the report of the Edwin Coe fisheries expert, Mr Cox, in November 1999 and his evidence at trial, it is reasonable to infer that the delay in providing the data made no difference to the Edwin Coe applicant’s conduct of the case and consideration of the part 2 offers, since catch data as mitigating income was only used by Mr Dyson as a reasonableness check and not for the purpose of substantive calculations. I have no means of resolving this conflict. The Edwin Coe applicants have, as is their right, chosen not to waive privilege. There is no reason to suggest that they should have done so. My ruling was given on Day 22 of the trial, after much evidence had been given.
   I am unable, on the evidence before me, to say or to infer what influenced the Edwin Coe applicants to settle their remaining period 2 claims. The furthest I can go on the evidence is to take some account of the chance that the additional data may have had an effect in relation to the period 2 claims in influencing the decision of the Edwin Coe applicants. This can best be done by extending the period for which the Government must pay the costs in relation to these issues. In relation to these period 2 claims, the Edwin Coe applicants are to be entitled to their costs to 14th February 2000. Thereafter they must pay the Government's costs in relation to these issues.”
5.   Complaint is made about the shortage of reasons in the above ruling. But certain points should be made about that criticism at the outset. First, the judge had set out the guiding principles applicable at an earlier stage in his judgment and the real question is whether any complaint can be made about those. Second, the judge had set out in considerable detail the history of the Factortame litigation including the history of the assessment of damages aspect. He of course did so in the context of ruling on various different points, but in his recitation of the history he pointed up certain factors showing that he was seeking to address the question as to the extent to which the amendment had provided an excuse to accept a payment in that should in fact have been accepted earlier. Third, although the focus of attention of the submissions of the claimants, and the defendants, and thus the judge was on the reasons why the EC claimants ultimately wished to accept the payments in after the amendments to the defendants’ case, that question is in reality the other side of an equally important question which is, whether the claimants should in fact have accepted the payment in within the 21 day limit extended by the judge to 7th February, a question into which the judge in a case where the trial is nearly complete would have a considerable insight. If the position at the end of the trial was that even without the new figures the judge felt that it was unlikely that an award would exceed the payment in, then his conclusion could be that the amendments were truly being used as an excuse to take money that should have been accepted much earlier. In that context however he might also feel that if the amended figures had been available at the time when the original payment in had to be considered, since those figures might arguably have influenced a decision, some compensation in costs should be awarded for that factor. This is of course the exercise that the defendants say the judge can be seen to have done. They say by ordering the defendants to pay one further week of costs one can see that the judge had concluded that it was unlikely that the EC claimants would have beaten the payment in even in the absence of the amendment, but that some small adjustment should be made for the lost chance of considering as at 7th February 2000 the defendants’ case as it became on 13th April 2000 after his ruling.
   Approach of appellate court
6.   Costs are matters within the discretion of the judge. Thus it is that an appellate court should certainly not interfere with the exercise of the discretion of the judge merely because it takes the view that it might have exercised that discretion differently. As Chadwick LJ put it in Johnsey Estates (1990) Ltd v The Secretary of State for the Environment [2001] EWCA Civ 535 paragraph 22:
  
   “[that] last … principle requires an appellate court to exercise a degree of self restraint. It must recognise the advantage which the trial judge enjoys as a result of his ‘feel’ for the case which he has tried. Indeed, as it seems to me, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge’s exercise of his discretion is flawed. That is to say, that he has erred in principle, taken into account matters which should have been left out of account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse – see Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 per Lord Justice Stevenson at 400 C-F and Lord Justice Griffiths at p. 403G-H.”
7.   In this case the judge had been in charge of interlocutories for a considerable period and had tried the case for 23 days. The trial was almost at an end. No appellate court could conceivably have the same feel for the case that the judge did. The extent of his feel is such that even if I could be persuaded that in some way he misdirected himself or applied a wrong test, it would on any view be necessary to send the case back to him to make a reassessment by reference to the right test. This court simply could not be asked to steep itself in the detail to the extent that would be necessary if it was to exercise a discretion afresh.
8.   Two things follow from the above. First, an outline of the history of the litigation is all that is necessary for this court to trace. Second, if the appellants are to succeed they must identify a principle to which the judge has not adhered, or identify a misdirection, or demonstrate that he was so plainly wrong that his decision can be described as perverse. Mr Strauss has not sought to do other than identify a principle to which he says that the judge did not adhere. He has not suggested that if the judge correctly directed himself then his decision was perverse.
   The outline
9.   In 1988 by certain regulations the Government of the United Kingdom sought to enforce the provisions of the Merchant Shipping Act 1988 (the 1988 Act). The proceedings brought by the applicants alleged incompatibility of the 1988 Act and/or the regulations with the Treaty of Rome. It further led to litigation in relation to the question whether interim relief should be granted against the Government preventing enforcement of the 1988 Act pending resolution of the question whether that Act was incompatible. The litigation ultimately resulted in the Government being found to be in breach of its Community obligations and ultimately led to a finding that the Government was bound to compensate the applicants in damages. The claimants claimed loss or profits for 2 periods. Period 1 related to the losses between the date when the 1988 Act took effect and the date when particular vessels resumed fishing, and period 2 losses related to the period after vessels resumed fishing. The essence of the claim in relation to period 2 as briefly described to us by Mr Strauss was as follows. The assertion was that fewer fish were caught on resumption than would have been caught if vessels had not been kept out of the relevant waters during period 1. One issue in relation to period 2 was the extent to which the applicants should give credit for fish that they had caught during period 2. The applicants’ case at the outset was in any event that such fish as were caught during period 2 would have been caught anyway and thus no credit should be given. The Government case was that allowance should be made for what was described as “mitigation” by reference to fish caught during that period.
10.   On 14th May 1999 Points of Claim setting out the damages claimed for loss of hake, monk and megrim in period 2 were delivered. A defence was served on 16th July 1999 and further and better particulars of Points of Claim were delivered on 23rd September 1999.
11.   During September the defendants’ experts provided to Mr Dyson, the applicants’ accountancy expert, catch landings data of other species of fish asserted by the Government to have been caught during period 2 and asserted by the Government to be catch which should be taken into account in mitigation when assessing damages.
12.   In Mr Dyson’s reports dated 12th November 1999 the catch data relating to other species was used to do a “reasonableness check” i.e. to check whether having regard to the total actual and alleged lost volume of fish caught post the 1988 Act, as compared to the total volume caught pre the Act, credit should be given for the catch of other species. The conclusion at that stage was that except in the case of one applicant no credit was appropriate and Mr Dyson and Mr Cox were at one in taking the view “that no deduction should be made for any mitigating turnover ….. In my view these catches would have been made in any event.”
13.   It was in November 1999 that the defendants’ expert discovered that their records relating to the above catch data might be unreliable. They were however performing other tasks and did not thus at that stage make any relevant assessment.
14.   On 17th December 1999 Part 36 payments were made. Time for acceptance under Part 36 would have been 21 days i.e. 7th January 2000.
15.   On 31st January 2000 the defendants in their expert reports were still using their previous figures so far as mitigating catch was concerned. In early February 2000 the defendants’ experts started to check the figures relating to the catch of other species. That work was completed by mid-February and it was the intention of the Treasury Solicitor to provide the EC applicants with the new figures on 28th February 2000. By an unfortunate error this was not done until 5th April 2000.
16.   The claim being made by the EC applicants for the period 2 losses varied from £1m to £1.5m, the monetary value of the increase in catch demonstrated by the new figures varied between £80,500 and £230,000. The payments in to court had varied between £139,010 and £379,220.
17.   On 13th April 2000 after considerable argument the judge ruled that the new figures of the defendants could be adduced in evidence. On 17th April 2000 the EC applicants notified the Treasury Solicitor that they wished to accept the Part 36 payments and it was later agreed that this would be done without prejudice to the costs issue.
18.   As the judge noted (see p. 13):
  
   “The part 36 payments … were very substantially less than the sums claimed originally by the applicants. Apart from one settlement at just over 50 per cent of the sum originally claimed, the other sums which were eventually accepted were a substantially lesser proportion of the sums claimed by the applicants.”
   (The reference to the 50 per cent figure does not relate to any of the Part 36 offers with which this appeal is concerned).
19.   It is right just to add to the above that on 11th February 2000 i.e. prior to receipt of the new figures, Mr Cox, the expert for the applicants, had expressed the following view in relation to mitigating catch:
  
   “I would agree entirely with Mr Porter that were one able to quantify reliably the amount of additional quantities of non-quota species caught by the applicants’ vessels then credit may have to be given. However the answer to Mr Porter’s proposition is that I do not see how one can establish what additional quantities if any were caught. There is no legal requirement to record non-quota species in EU log books during the base period: ….”
   That would seem to indicate a slight change of view as to whether the mitigating catch should be taken into account or not.
20.   The trial started on 6th March 2000 and thus had been running for a month before the revised data were sought to be introduced on 5th April 2000. The trial ultimately ran for 23 days.
   The law relating to costs
21.   The judge directed himself in the following way so far as relevant to the Part 36 payments with which this appeal is concerned:
  
   “The overriding objective in part 1 of the CPR is that the court should deal with cases justly, including a requirement that as far as is practicable the court should ensure that the parties are on an equal footing.
   The detailed rules are contained in part 44 (costs) and part 36 (payments into court) and can be summarised as follows:
  
(1)   The court has an overall discretion as to whether costs are payable by one party to another, and if payable the amount of those costs and when they are to be paid (part 44.3 (1)(a)(b) and (c)).
(2)   If the court decides to make an order, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order (part 44(3)(2)(a) and (b)).
(3)   It is to be inferred from part 36 rule 20 and the case of Findlay v Railway Executive [1950] 2 All ER 969 that a party which accepts a part 36 payment after the expiry of time for accepting such a payment becomes from that date the unsuccessful party when considering the principle in (2) above.
(4)   In deciding what order to make, the court must have regard to all the circumstances, including (a) the conduct of the parties, (b) whether a party has succeeded on part of his case, even if he has not been wholly successful, and (c) any payment into court or admissible offer to settle made by a party (whether or not made in accordance with part 36) (part 44.3(4)).
(5)   The conduct of the parties includes all conduct, both before and during the proceedings (part 44.3(5)).
(6)  
(7)   A part 36 offer or payment requires the permission of the court if it is an offer to settle part of the claim or has been accepted more than 21 days after the offer of payment is made, unless the parties have agreed costs. In such cases, the liability for costs shall also be decided by the court; see part 36.11(3) and part 36.15. …
(8)   Although it is expressed only to apply at trial, part 36.20 provides guidance where a party accepts a part 36 offer or payment after the 21 days. It provides that where at trial a claimant (a) fails to better a part 36 payment or (b) fails to obtain a judgment which is more advantageous than a defendant’s part 36 offer, unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court. In reaching a conclusion on this issue, the court must take into account the consideration set out in part 36.21(5). …
   Although a party which fails to accept a part 36 payment until after the expiry of time for accepting such a payment is deemed to be the unsuccessful party, this is only a starting point. The court must take into account all the circumstances in which the payment is made, and in particular the circumstances in part 36.21(5) in deciding whether it would be unjust to award the defendant its costs from that date, i.e. (a) the terms of any part 36 offer, (b) the stage at which such part 36 payment was made, (c) the information available to the parties at the time when the part 36 offer or payment was made, (d) the conduct of the parties with regard to the giving or refusing of information for the purposes of enabling the part 36 payment to be evaluated.
   Although it was decided under the old Rules of the Supreme Court, in Ford v GKR Construction Ltd [2000] 1 WLR 1397 at 1403 810, Lord Woolf MR commented in relation to both the old and the new rules that the court has power to make orders other than that costs follow the event where a party fails at the end of the trial to recover a sum larger than the payment into court. He emphasised that the general rule should not apply where it was unjust that it should do so:
   “If a party has not enabled another party properly to assess whether or not to make an offer or whether or not to accept an offer which is made because of nondisclosure to the other parties of material facts or if a party comes to a decision which is different from that which would have been reached if there was proper disclosure, that is a material matter for the court to take into account in considering what orders should be made.”
   I do not understand Lord Woolf MR to be signalling a change in the law which permits a party to seek to interrogate another party as to its thinking behind the part 36 payment; but rather he was emphasising that if the other party was at an unfair disadvantage, because the party had failed to disclose documents or information that it was required to disclose, that was a material matter that the court should take into account.
   In Jones v Jones Court of Appeal transcript 13th October 1999, at page 10 of the transcript, Lord Justice Chadwick made a similar point:
  
   “The court may also take into account the circumstances which have given rise to a change of mind (whether or not to accept the payment into court). In particular, if the court was satisfied that the change of mind arising from a reassessment of the risk in the light of new material was attributable to the defendant’s failure to produce that material at an earlier date (or now in contravention of some protocol), it might take the view that the plaintiff should not be required to bear all or some part of the intervening costs. If the defendant has failed to do what the rules or an order of the court require within the time prescribed, then the price of obtaining the permission of the court to do later what he should have done earlier may be that the plaintiff should have the chance to take the money out of court without penalty. The reason is that the costs which have been thrown away were not incurred by reason of a misreading of the position by the plaintiff on the basis of material which was or should have been available but by reason of the absence of available material which he should have had if the defendant had complied with his obligations.”
   These two extracts emphasise that in considering whether or not it would be unjust to penalise a party for the late acceptance of a part 36 offer, I should take into account any failure by the respondents to provide documents and information which they should have provided under the rules or which was material to the claimant’s consideration of the part 36 offer. This is a separate issue to the question of whether the Government could properly refuse to clarify its part 36 offers when it was asked to do so. …..”
   Was the judge right in the way he directed himself?
22.   I can find no fault with the way in which the judge directed himself in relation to Part 36. One must remember that straightjackets are inapposite for the approach that a judge should take when dealing with costs. The principles are there to guide and the judge clearly set out the relevant guiding factors. The first relevant and important principle is that the unsuccessful party should pay the costs of the successful party. If there has been a payment into court it will follow that the offer contains a further offer that the payer in will meet the costs up to the date when the payment in should have been accepted. So in this case there is no dispute that so far as the costs up to 7th February are concerned the defendants will, in addition to allowing the payment out, pay the costs.
23.   If a payment in has not been accepted there is a further starting point accepted by the judge and by both sides in this case, that if the claimant fails to beat the payment in, prima facie the claimant will be considered the unsuccessful party as from the date when the payment in should have been accepted. He must pay the costs from that date as a normal rule (see Findlay v Railway Executive). But that presumption may be dislodged in special circumstances, e.g. where the judge takes the view that a defendant has withheld material and not allowed a claimant to make a proper appraisal of the defendant’s case (see Chadwick LJ in the passage quoted by the judge from Jones v Jones and Lord Woolf in the passage quoted by the judge from Ford).
   Submissions of the parties
24.   Mr Strauss sought to persuade the judge and us that there should be a principle that if the defendant amended his case in any material respect and was at fault for failing to do it much earlier and in particular if he was at fault for failing to make the amendment prior to the time of the payment in, that should in effect provide an opportunity for the claimant to reconsider a payment in, and lead thus to the conclusion that if the payment in was accepted immediately following that amendment, the almost inevitable result should be that the claimant received all his costs up to the date of acceptance. His argument in favour of there being such a principle was supported he suggested by the following factors. First, a claimant was entitled to know what a defendant’s case was when considering whether to take out a payment into court. Where material was in the hands of the defendant at the time of the payment in from which the defendant could have made clear his full case when the payment in was originally made, it is the defendant who should be penalised for not having made clear his full case. Second, from an acceptance immediately following an amendment it should be inferred that it was the amendment that was the key influence on the claimants’ decision to accept the money in court. Third, it would be invidious to try and establish what in fact influenced the claimant to take the payment in when he did, or not to take the payment in at some earlier stage, both because to try out the point would involve the disclosure of privileged material and because a full-blown trial on issues of costs should be avoided, and the right approach was thus that having regard to the defendant’s fault, the claimant should receive the benefit of the doubt.
25.   Mr Friedman submitted that there should be nothing approaching a principle as suggested by Mr Strauss. Mr Strauss characterised Mr Friedman’s submission as being that unless the claimant could establish that if the government had correctly stated its case, the claimant would have accepted the payment in, the prima facie rule that a failure to beat the payment in resulted in the claimant being treated as the unsuccessful party should apply. I do not think ultimately his submission went that far. He submitted that the proper approach was as follows. First, the claimant who fails to beat a Part 36 offer is prima facie the losing party. Where the claimant requires leave to take a payment out of court, the court has a discretion in relation to costs but should have regard to all the circumstances of the case including whether the defendant’s conduct has prevented a proper assessment being made by the claimant. When the court concludes that the defendant’s culpable conduct did prevent a proper assessment, the court may order the defendant to pay the costs of the claimant (Ford is an example). What is the proper conclusion to draw will depend on the facts of each case. The fact that a belated acceptance follows disclosure of new information or an amended case is relevant because it may show that the new information prompted a reassessment but it will not necessarily bring about the conclusion that the defendant should pay all the costs up until acceptance of the payment in even if non-disclosure is culpable.
26.   He accepted that there was fault in the instant case though the fault was clearly most serious from 28th February onwards and more understandable as at the time of the payment in. He further accepted that a full trial of the issue as to precisely what had influenced the decision not to take the payment in as at 7th February and to take the money out when it was taken out, should be avoided. But his submission was that what the judge should be seeking to establish where a payment in is sought to be accepted so near the end of the trial as was the case in this instance was who in reality was the unsuccessful party. It would be quite wrong, he submitted, if a claimant could simply use an amendment as an excuse to take out a payment in and receive an award of costs if in reality the claimant should have accepted the original payment in.
   Conclusion
27.   I would reject any principle or rule of the type suggested by Mr Strauss. Each case will turn on its own circumstances. It seems to me that so far as possible the judge should be trying to assess who in reality is the unsuccessful party and who has been responsible for the fact that costs have been incurred which should not have been. It is plainly right that a full scale trial examining privileged material, and listening to ex post facto justification should be avoided. It furthermore does not seem to me to be right to seek to lay down rules as to where the onus will lie where a defendant is allowed to amend his case. As I have already said straightjackets in this area should be avoided. The starting point is that a claimant who fails to beat a payment in will prima facie be liable for the costs. An amendment may be of such a character that a judge will feel that the onus should be firmly placed on the defendant to persuade him that the prima facie rule should continue to apply; on the other hand the judge may be quite clear by reference to his feel of the case that the amendment is being used as an excuse to take money out of court that should have been accepted when originally made. Some cases will lie between the two extremes, and the judge will have to adjust his assessment to give effect to possibilities which it would be inappropriate to try out and thus by reference to his overall view of the case.
28.   In the instant case the judge correctly identified the starting point (see p.22 lines 21-24). He furthermore correctly identified the possibility that an amendment of the case due to the fault of the defendant might give rise to a dislodging of the prima facie rule and even lead to an award of costs in favour of the claimant (see the two quotations of Chadwick LJ and Lord Woolf and the passage at p.25 of the judgment). His reasons for concluding that the prima facie rule should continue to apply subject to an award of costs in favour of the EC claimants for the further week between 7th and 14th February could have been more expansive. However, it seems to me that it cannot be said he erred in principle, nor that he misdirected himself, (nor indeed, if it had been suggested, that his decision was perverse). He had the feel of the case better than anyone. He clearly took the view that it was doubtful whether the amendments to the figures which he allowed in April, if produced in December would have led the claimants to accept the payment in, but since he could not be absolutely sure of that, it was fair to allow the further week. That is an exercise of his discretion with which this court should in my view not even contemplate interfering.
29.   I would dismiss the appeal.
   Lord Justice Sedley:
30.   I agree.
   Lord Justice Simon Brown:
31.   I also agree.
   ORDER: Appeal dismissed with costs in the agreed sum of £21,000.
   (Order not part of approved judgment)