(In this YAWS version a few editorial alterations have been made to the description of the CPR and Practice Directions, eg references to Part 3.8 have been changed to Rule 3.8, to ensure consistency with the remainder of the site.)
| This Report is referred to in: Afrika v Cape [7], Budgen v Gardner [34], Factortame Ltd v Dept of Transport [6], Kastor Navigation Co Ltd v AGF M.A.T. [2], [14], [15], S&N v Raguz [41], Straker v Tudor Rose [6], [7]. |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
THE TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Moseley QC)
Royal Courts of Justice
Wednesday 11th April 2001
Before:
- and -
THE SECRETARY OF STATE FOR THE ENVIRONMENT
Respondent
(Transcript of the Handed Down Judgment of
Miss Shea (instructed by Messrs Edwards Geldard of Cardiff for
the Appellant)
Mr Jonathan Gaunt QC (instructed by Hugh James Ford Simey of
Cardiff for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
|
LORD JUSTICE CHADWICK :
| |||||||||
| 1. |
This is an appeal from an order as to costs made on 11 November 1999 by
His Honour Judge Moseley QC, sitting in the Technology and Construction Court
at Cardiff, in proceedings brought by Johnsey Estates (1990) Limited against
the Secretary of State for the Environment. The appeal is brought with the
permission of the judge.
| ||||||||
| 2. |
The appellant is, or was at the material time, the owner of premises known
as Brecon House, Mamhilad Park Estate, Pontypool. The premises had been let to
the Secretary of State, under a lease dated 7 May 1995, for a term of twenty
years from 24 June 1974. The landlord had served notice under part II of the Landlord and Tenant Act 1954Acts; the Secretary of State was content to give up
possession; and did so on or about 24 June 1994.
| ||||||||
| 3. | The lease had contained repairing covenants in a conventional form. The landlord was dissatisfied with the state of the building as yielded up by the tenant at the determination of the lease. On 13 December 1995 the landlord commenced these proceedings in the Cardiff District Registry of the Chancery Division of the High Court seeking damages for breach of covenant. A statement of claim was served on 19 January 1996. | ||||||||
| 4. |
Prima facie, the damages which can be recovered by a landlord in
respect of breaches of repairing covenants in a lease are measured by the
diminution in the value of the reversion attributable to the fact that the
premises are out of repair. In any event damages for breach of a covenant to
leave premises in repair at the termination of a lease cannot exceed the amount
by which the value of the reversion is diminished owing to that breach - see
section 18(1) of the Landlord and Tenant Act 1927Acts.
| ||||||||
| 5. |
The Secretary of State instructed an expert valuer, Mr Dickenson, to advise
him as to the amount by which the value of the reversion had been diminished by
the breaches of covenant for which he, as tenant, was liable. The advice
received was that the diminution in the value of the reversion was
£150,000 or thereabouts. The landlord, on the other hand, was advised that
the diminution in the value of the reversion consequent upon the lack of repair
was £1.25m. The unusually large difference in the two valuations is
explained by the nature of the building (which, it was common ground, was
difficult to value) and the differing perceptions of its potential. The gulf
between the parties became apparent when, in September 1996, the valuers
exchanged preliminary reports.
| ||||||||
| 6. |
On 25 September 1996, the Secretary of State paid £200,000 into Court
in satisfaction of the landlord's claim. Although not expressed to be in
respect of any particular damage, it is a fair inference (and it is not in
dispute) that the amount of that payment in was determined by the advice which
the Secretary of State had received from Mr Dickenson. It reflected the figure
of £150,000 which he had put on the diminution in the value of the
reversion, with interest on that amount from 24 June 1994 to 25 September 1996,
and with a small margin. Given the advice that the landlord had received from
its valuer, Mr Lawley, it is a matter of no surprise that the payment in was
not accepted by the landlord.
| ||||||||
| 7. |
It is said that, after September 1996 and until February 1999, the parties
proceeded on the basis of a common understanding that the cost of actually
doing the works of repair necessary to remedy the breaches of covenant alleged
would exceed the diminution in the value of the reversion; even if the
diminution in value could be established at the figure for which the landlord
was then contending (£1.25m). That may well be so; but (despite the
service in May 1998 of a notice to admit) no formal admission that the cost of
doing the works would be, at the least, no less than the diminution in the
value of the reversion was made by the Secretary of State until 15 October
1998. Until that date the position on the pleadings was that the landlord was
required to establish the cost of actually doing the works as well as the
amount by which the value of the reversion had been diminished.
| ||||||||
| 8. |
On 14 January 1997 the £200,000 then in court was paid out to the
landlord, by agreement, as an interim payment. That payment out was,
subsequently, to affect the computation of interest awarded by the judge; but
it is common ground that it could have no effect on the incidence of costs.
| ||||||||
| 9. |
By the end of 1998 - and in preparation, no doubt, for an impending trial
fixed to commence in April 1999 - those advising the Secretary of State gave
further consideration to the particular elements of disrepair for which it
might be accepted that he was liable under covenants in the lease. Particulars
of the landlord's claim were sought in December 1998. Those particulars were
provided in January 1999. In the light of those particulars - and, no doubt,
after further consideration of the potential of the building - the expert
valuers revised their reports. Mr Dickenson increased his assessment of the
diminution in the value of the reversion from £150,000 to £200,000.
Mr Lawley brought his figure down, from £1.25m to £1.025m. But there
was still a substantial gulf between them.
| ||||||||
| 10. |
The experts' reports, in their revised form, were exchanged on 11 February
1999. On 19 February 1999 the Secretary of State paid a further £250,000
into Court; bringing the total monies notionally in court up to £450,000.
The notional amount in court was not accepted by the landlord.
| ||||||||
| 11. |
On 26 February 1999 the parties were before the court on a pre-trial
review. The Secretary of State obtained permission to withdraw his admission
(made in October 1998) that the costs of actually carrying out the works of
repair would necessarily exceed the diminution in the value of the reversion.
It was explained to us that that admission was withdrawn because the Secretary
of State had reached the view, in the light of the particulars provided by the
landlord, that the works which needed to be done in order to put the building
into the state of repair in which it should have been if the repairing
covenants had been observed were not as extensive as he had first thought; and
might not exceed the amount (£1.025m) of the diminution in the value of
the reversion for which the landlord was then contending.
| ||||||||
| 12. |
Also on 26 February 1999 the landlord obtained leave to amend its statement
of claim. The amended statement of claim introduced a new claim, based on an
alleged failure to comply with the provisions of clause 4(12) of the lease -
which had required the tenant to comply with all health and safety regulations
imposed by statute. The damages claimed in the amended statement of claim fall
under three main heads: (i) the cost of the work needed to remedy the breaches
of repairing covenants - £1,913,609; (ii) the loss of rent during the
period needed to carry out the works of repair - £173,254; and (iii) costs
associated with the preparation of a notice of disrepair served in June 1994
shortly before the termination of the lease, purportedly under section 146 of
the Law of Property Act 1925Acts - £12,846. The claim in respect of the costs
of work (£1,913,609) included (a) £205,040 said to be attributable
solely to painting or decoration and (b) £155,544 said to be the costs of
works needed to comply with clause 4(12). The significance of those two items
(together £360,584) is that it was said that they were not subject any cap
imposed by section 18(1) of the Landlord and Tenant Act 1927Acts; that is to say,
that they were recoverable in addition to any amount in respect of the
diminution to the value of the reversion. On the basis of the figures set out
the amended statement of claim (and ignoring, as it does, the effect of section
18(1) of the Act) the landlord's total claim was for a sum in excess of
£2.25m; and there was a claim for interest on top of that.
| ||||||||
| 13. |
The action came on for trial on 12 April 1999. The trial extended over 7
days. Judgment on the claims in the action was handed down on 29 October 1999.
The judge rejected the claim (£12,8746) in respect of the costs of
preparing and serving the section 146 notice. He held that the circumstances
in which the notice had been served led to the conclusion that it could not
have been served for the proper purposes of that section. He rejected the claim
based on alleged breach of clause 4(12) - the covenant to observe the health
and safety regulations. He rejected, also, the contention that the claim for
painting and redecoration was outside the scope of section 18(1) of the Landlord and Tenant Act 1927Acts. He held that the cost of repairs needed to put
the premises in the state in which they should have been in at the
determination of the lease was £840,106. The judge allowed nothing for
loss of rent - on the basis that the building would, anyway, have remained
empty during the period over which it would have been reasonable for the works
of repair to be carried out.
| ||||||||
| 14. |
The judge then turned to the question: what was the diminution in the value
of the reversion consequent upon the breaches of repairing covenants which he
had found to be established. He assessed that at an amount of £200,000.
That was, of course, the figure which had been advanced by Mr Dickenson on
behalf of the Secretary of State. But, as the judge observed at paragraph 59.4
of the judgment which he handed down on 29 October 1999, that should be
regarded as a coincidence; it was not the result of the judge adopting Mr
Dickenson's valuation uncritically. The flavour of the judge's approach appears
from his remark, at the end of that paragraph, that: "That [the criticism which
he had set out] says nothing about whether Mr Dickenson's conclusion concerning
the value of the property is right or wrong but only that the method by which
he reaches the conclusion is wrong". It goes without saying that he also
rejected Mr Lawley's methodology, which had led to a much higher valuation.
| ||||||||
| 15. |
On the basis that diminution in the value of the reversion (£200,000)
was less than the costs of repair (£840,106) the judge awarded the
landlord damages of £200,000 with interest thereon at 8% from 24 June 1994
to 25 September 1996 (that being the date on which £200,000 had been paid
into Court) He awarded interest also, from 25 September 1996 to 13 February
1997 ( the date when, by agreement, the monies then in court were paid out to
the landlord by way of interim payment) at the rate at which interest had
accrued on the amount in court.
| ||||||||
| 16. |
Interest at 8% p.a. for the period of 24 June 1994 to 25 September 1996
amounted to £36,000. The position, therefore, was that the landlord had
recovered more than the £200,000 paid into Court on 25 September 1996. But
the landlord had recovered less than the aggregate amount in Court
(£450,000) following payment in of the further £250,000 on 19
February 1999.
| ||||||||
| 17. |
When handing down his judgment on 29 October 1999 the judge invited
submissions as to costs. In the light of those submissions he delivered a
further judgment in relation to costs on 11 November 1999. The effect of that
judgment appears from the order which is now under appeal. It was ordered
that:
| ||||||||
| |||||||||
|
In that context the "costs of the common law claims" means the costs of
establishing the actual cost of works of repair; and the "costs of the
diminution in value issue" means the costs of establishing the amount of the
diminution in value of the reversion.
| |||||||||
| 18. |
The judge gave the landlord permission to appeal against paragraphs 2, 3
and 4 of the order made on 11 November 1999. He gave the Secretary of State
permission to appeal against paragraph 2 of the order. In the event there has
been no appeal by the landlord against paragraph 4 of the order (that the
landlord pay the Secretary of State's costs incurred after the second payment
in on 19 February 1999). If I may say so, it is difficult to see any basis upon
which that paragraph of the order could be said to be wrong. Nor has there
been an appeal by the Secretary of State against paragraph 2 of the order.
There are, therefore, two issues on this appeal: (i) should the landlord be
deprived of the whole of its costs incurred between 25 September 1996 (the date
of the first payment in) and 19 February 1999 (the date of the second payment
in); and (ii) should the landlord be required to pay such part of the Secretary
of State's costs incurred during that period as are attributable to
establishing the amount of the diminution in the value of the reversion.
| ||||||||
| 19. |
The landlord's contentions can be put simply. It succeeded in a claim
which has been held to have had a value (with interest) of £236,000 as at
the date of the first payment in (25th September 1996). It can be said, in the
vernacular, to have beaten the first payment in. Costs should follow the
event; and so the landlord should have all its costs from 25 September 1996
until the date of the second payment in (19 February 1999). There is no basis
upon which the landlord, as the successful party in this context, should be
deprived of its costs; a fortiori, there is no basis upon which the
landlord, as the successful party, should be required to pay the costs of the
unsuccessful party - which is the effect of the order made under paragraph 3 in
relation to the diminution in value issue.
| ||||||||
| 20. |
The jurisdiction to award costs is conferred by section 51 of the Supreme
Court Act 1981 and is to be exercised in accordance with the rules of court in
force from time to time. The Civil Procedure Rules 1998 were introduced on 26
April 1999; that is to say, just after the conclusion of the trial but before
the judge had delivered his first judgment. In those circumstances it was
common ground (as the judge recorded in his judgment on 11 November 1999) that
the principles to be applied in relation to costs were those applicable in
civil litigation prior to the introduction of the new civil procedure rules.
But, as Lord Woolf, Master of the Rolls, observed in | ||||||||
| |||||||||
| 21. |
The principles applicable in the present case may, I think, be summarised
as follows: (i) costs cannot be recovered except under an order of the court;
(ii) the question whether to make any order as to costs - and, if so, what
order - is a matter entrusted to the discretion of the trial judge; (iii) the
starting point for the exercise of discretion is that costs should follow the
event; nevertheless, (iv) the judge may make different orders for costs in
relation to discrete issues - and, in particular, should consider doing so
where a party has been successful on one issue but unsuccessful on another
issue and, in that event, may make an order for costs against the party who has
been generally successful in the litigation; and (v) the judge may deprive a
party of costs on an issue on which he has been successful if satisfied that
the party has acted unreasonably in relation to that issue; (vi) an appellate
court should not interfere with the judge's exercise of discretion merely
because it takes the view that it would have exercised that discretion
differently.
| ||||||||
| 22. |
The last of those principles 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 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
| ||||||||
| 23. |
I turn, therefore, to examine the basis upon which the judge reached the
conclusion that he did. Unless it can be seen that that basis is flawed, this
Court ought not to interfere with his order.
| ||||||||
| 24. | At paragraph 8 of his judgment the judge identifies what he describes as "the two broad issues" in the litigation before him. They were: | ||||||||
| |||||||||
|
I accept, of course, that those were, indeed, the two broad issues in the
litigation. But it is necessary to keep in mind that there is an important
link between those two issues. The effect of section 18(1) of the Landlord and
Tenant Act 1927 is not that the landlord automatically recovers an amount
measured by reference to the reduction in future rental value. Section 18(1)
of the 1927 Act provides a cap. The landlord has to establish the amount of
his actual loss. If the cost of actually doing the repairs is less than the
diminution in the value of the reversion (measured by reference to the
reduction in the rent which could be obtained if the repairs were left undone)
the damages will be equal to the cost of doing the repairs. To put the point
another way: in such a case the diminution in value of the reversion will be
measured by the cost of putting the property into repair. So, unless it is
conceded by the tenant that, whatever the cost of repairs, they will exceed
whatever amount is held to be the diminution in value of the reversion
(measured by reference to reduced future rent) both issues are engaged.
Further, it is, of course, necessary to establish that the factors which are
said to lead to a reduced rent are attributable to the tenant's failure to
comply with its repairing covenants. It would be possible to have the two
issues tried separately - and there may be occasions where that course will
lead to a saving of costs- but that was not the course adopted in this
case.
| |||||||||
| 25. |
The judge addressed the two issues which he had identified in the
following passage, at the end of paragraph 8 in his judgment:
| ||||||||
| |||||||||
| 26. |
In that passage the judge described the defendant as "overwhelmingly
successful" on each of the two broad issues which he had identified. In my view
that is not a correct analysis of the position. Indeed, if it were, it would be
difficult to reconcile with the result: the claimant obtained judgment for a
sum of money which it could not have recovered (at any time before 19 February
1999 - the date of the second payment in) without proceeding towards judgment.
The true position is that, in relation to the whole of the period before 19
February 1999, the claimant was the successful party. It obtained, by
litigation, more than it could have obtained without litigation. And, in order
to achieve that, it was necessary (at least until 15 October 1998 when the
point was formally admitted) for the claimant to pursue both the common law
claims and the diminution in value issue. In order to obtain the judgment which
it did, the claimant had to establish both that the diminution in value was
£200,000 and that the costs of actually carrying out the works of repair
were not less than that figure. As I have said, the latter point was not
formally admitted until 15 October 1998.
| ||||||||
| 27. |
The fallacy in the judge's reasoning is, I think, exposed by the fourth
sentence in the passage which I have set out: "The diminution in value was
held to be £200,000, precisely the figure for which the defendant
argued". The position at the relevant time - that is to say, at any time
before the exchange of revised expert's reports on 11 February 1999 - was that
the Secretary of State was contending that the amount by which the value of the
reversion had been diminished was £150,000. The first payment in
(£200,000 on 25 September 1996) after discounting interest over the period
of twenty seven months which had elapsed since the termination of the lease,
had a value equivalent to £170,000 or thereabouts as at the date (24 June
1994) that the claim arose. It cannot be said that the outcome of the trial
was that the Secretary of State succeeded in defending the position which had
been adopted on his behalf prior to 11 February 1999. The most that can be said
is that the outcome was much closer to that position than it was to the
position which had been adopted on behalf of the landlord.
| ||||||||
| 28. |
On a proper understanding of the position, the first payment in, on 25
September 1996, was irrelevant to a consideration of where the costs of the
litigation should lie. It was irrelevant because it fell short of the amount
(£236,000) to which the claimant has been held entitled as at that date by
a margin (some 15%) which cannot be dismissed as de minimis. The judge
was right when he observed, at paragraph 3 of his judgment, that he could see
no logic in an order for costs which differentiated between what he described
as the first stage of the litigation (the period before 25 September 1996) and
the second stage (the period from 25 September 1996 and 19 February 1999). He
should have gone on to appreciate that if (as the parties themselves had
accepted) the claimant was to be treated as the successful party in relation to
the first stage, logic required that it should be treated as the successful
party in relation to the second stage also.
| ||||||||
| 29. |
It follows, in my view, that the judge's approach was flawed. He ought to
have recognised that, in relation to costs incurred before 19 February 1999,
the landlord was the successful party; and that, accordingly, the starting
point from which to approach the exercise of discretion in which he was engaged
was that the landlord should have its costs down to that date. I accept, of
course, that a party who has been successful overall may, nevertheless, be
deprived of his costs - and may be ordered to pay the costs of the other party
- in respect of issues which he has fought unsuccessfully. But an exercise of
discretion on that basis cannot lead, in the present case, to an order that the
claimant pay the defendant's costs of the diminution in value issue in respect
of any period prior to 11 February 1999 (the date of the exchange of revised
expert's reports); nor to an order that the claimant should be deprived of its
costs of that issue prior to that date. That is because it cannot be said that
the claimant failed to establish what, as matters stood prior to 11 February
1999, it had to establish in order to succeed on that issue - namely, that the
diminution in the value of the reversion as at 24 June 1994 was greater than
the equivalent value, as at that date, of the payment in. Nor can an exercise
of discretion on that basis lead to an order that the claimant be deprived of
its costs of all the common law claims in respect of any part of the period
between 26 September 1996 and 15 October 1998. That is because it cannot be
said that the claimant failed to establish what, as matters stood prior to 15
October 1998 (when the point was formally admitted), it had to establish in
order to recover damages equal to the diminution in the value of the reversion
- namely, that the cost of actually making good the disrepair was at least
equal to the amount by which the value of the reversion was diminished
(measured by reference to the reduced rent).
| ||||||||
| 30. |
It follows that I would hold that it is for this Court to exercise the
discretion as to costs which, for the reasons which I have sought to give, I am
satisfied the judge failed to exercise in a manner which the law permits.
| ||||||||
| 31. |
Mr Gaunt QC, as counsel for the Secretary of State, sought to persuade us
that it was right, at the least, to deprive the landlord of all its costs
between 26 September 1996 and 19 February 1999. His submission, in effect, was
that the landlord was, throughout, seeking damages in amounts which were far in
excess of the amount to which it was ultimately held entitled; and that it was
the landlord's inflated and unrealistic valuation of its claims which had made
it impossible to dispose of the action by agreement in 1996. He accepted, of
course, that the amount of the first payment in turned out to be less than the
amount to which the landlord was entitled; but he submitted that that was
irrelevant; when the Secretary of State increased the amount notionally in
court to £450,000, the landlord would not accept it. The action went on
because the landlord was not interested in any reasonable offer; and, in those
circumstances, the landlord must bear its own costs.
| ||||||||
| 32. |
The submission has some superficial attraction on the facts of the present
case; but, for my part, I would reject it. It seems to me that a court should
resist invitations to speculate whether offers to settle litigation which were
not in fact made might or might not have been accepted if they had been made.
There are, I think, at least two reasons why a court should not allow itself to
be led down that road. First, the rules of court provide the means by which a
party who thinks that his opponent is not open to reason can protect himself
from costs. He can make a payment in; he can make a
| ||||||||
| 33. |
In my view, the relevant factors in relation to an award of costs in the
present case may be summarised as follows: (i) the question whether the amount
by which the value of the reversion had been diminished by the failure of the
tenant to comply with the repairing covenants in the lease exceeded the value
(as at 24 June 1994) of the first payment in was in issue throughout the period
from 26 September 1996 to 19 February 1999; (ii) the landlord was successful on
that issue; (iii) unless it can be said that the landlord was unreasonable in
pursuing that issue in the way that it did, the landlord should have its costs
of that issue; (iv) there is nothing in the judgment of 29 October 1999 which
suggests that the judge thought that it was unreasonable for the landlord to
pursue that issue on the basis of the advice which it had received from Mr
Lawley; the judge rejected Mr Lawley's view, but he seems to have accepted that
it was a view which could properly be advanced; and it is plain from his
judgment that he regarded the valuation exercise as one of some difficulty;
(v) the question whether the cost of actually doing the works of repair would
exceed the diminution in the value of the reversion (measured by reference to
the reduction in rent) was a live issue on the pleadings until 15 October 1998;
(vi) although we were told that the action proceeded after September 1996 on
the basis that that question was not regarded as a live issue, it is pertinent
that (notwithstanding a notice to admit served in May 1998) the Secretary of
State did not formally concede the point until 15 October 1998; and the point
was subsequently reopened in February 1999 and was fought at trial; (vii) the
landlord was successful on that issue also; (viii) unless it can be said that
the landlord was unreasonable in pursuing that issue in the way that it did,
the landlord should have its costs of that issue, at least in so far as those
costs were incurred prior to 15 October 1998; (ix) the landlord failed in its
claim to recover the costs of the preparation and service of the section 146
notice; (x) the landlord failed in any separate claim for damages for breach of
the covenant in clause 4(12) of the lease; (xi) the landlord failed in its
claim for lost rent in respect of the period which would have been needed to
carry out the works of repair; and (xii) the landlord failed to persuade the
judge that the costs of painting and decorating fell outside the cap imposed by
section 18(1) of the 1927 Act.
| ||||||||
| 34. |
I am satisfied that the landlord should have its costs of the diminution in
value issue up to 19 February 1999; and that it should have its costs of the
common law claims up to the date (15 October 1998) when those claims ceased (at
least for the rest of the second stage) to be a live issue. It is necessary to
consider whether to make separate orders in relation to any costs incurred
before 19 February 1999 in relation to the issues on which the landlord failed.
I think that it would be right to do so in relation to the costs of the
preparation and service of the section 146 notice - which the judge described
as a `sham'. It is clear that the judge thought that that claim should never
have been brought. The appropriate response is to require the landlord to pay
the costs to which it gave rise. I would not make separate orders in relation
to costs incurred before 19 February 1999 in respect of the other claims -
clause 4(12), lost rent, and the inapplicability of the section 18(1) cap to
painting and decorating. In so far as the costs in relation to those claims
were incurred after 19 February 1999, they will be paid by the landlord under
paragraph 4 of the order of 11 November 1999. Any separate costs incurred in
relation to those claims before 19 February 1999 are, as it seems to me, likely
to be small. In particular, the claim under clause 4(12) was not introduced
until the landlord obtained leave, on 26 February 1999, to amend its statement
of claim; the claim for lost rent was based on material which was, in any
event, relevant to the diminution in value issue; and the inapplicability of
the section 18(1) cap - in so far as the point had emerged before the statement
of claim was amended in 1999 - was, essentially, a matter which turned on
argument at the trial. In my view the separate costs (if any) incurred in
relation to those claims before 19 February 1999 are likely to be so small as
to make it disproportionate to make separate orders in respect of them.
| ||||||||
| 35. |
For those reasons, I would allow this appeal. I would set aside
paragraphs 2 and 3 of the order of 11 November 1999. In relation to the costs
incurred in this litigation between 26 September 1996 and 19 February 1999 I
would order: (a) that defendant pay to the claimant its costs other than (i)
costs incurred after 15 October 1998 which are solely attributable to
establishing the cost of doing works of repair and (ii) costs incurred in
pursuing the claim in respect of the section 146 notice; and (b) that the
claimant pay to the defendant its costs incurred in defending the claim in
respect of the section 146 notice. I have considered whether it is practicable
for this Court to make a "percentage" order, so as to avoid the need for
separate assessment in respect of discrete issues (see CPR 44.3(7)); but I am
satisfied that it is not practicable to adopt that course.
| ||||||||
|
LADY JUSTICE ARDEN
| |||||||||
| 36. |
I agree.
| ||||||||
|
LORD JUSTICE SCHIEMANN
| |||||||||
| 37. |
I also agree.
| ||||||||
| 37. | ORDER: Appeal allowed with costs at £16,000. | ||||||||
| (Order does not form part of approved Judgment) |