Appleyard v Thanet District Council & Anor

Costs in multi-party litigation remain a matter for the trial judge’s discretion. There are no hard and fast rules requiring costs to follow the event in every Part 20 claim. The court may limit or refuse costs where parties have advanced a common defence, no separate issues required determination, and separate representation would be disproportionate to the claim. An appellate court will interfere only where the discretion was exercised on an erroneous principle or the decision is outside the proper range. The modest value of the claim and the absence of any real difference between the council’s statutory duty and the contractor’s contractual duty supported the costs order.

The claimant brought a personal injury claim against Thanet District Council after falling in a hole on land occupied by the council. The council denied liability under the Occupier's Liability Act 1957 and brought a Part 20 claim against its maintenance contractor, Brophy plc.

The Watford County Court dismissed the claimant’s claim and the Part 20 claim. It awarded Brophy plc the costs of filing a defence but made no further order for costs in the Part 20 proceedings, holding that separate representation at trial was disproportionate because the parties had advanced a common defence. Brophy plc renewed its application for permission to appeal. The central issue was whether the judge had improperly exercised his costs discretion.

1. Permission to appeal refused. Costs are essentially within the discretion of the trial judge. No hard and fast rules govern the exercise of that discretion in comparable multi-party proceedings. Points which justify a particular costs order in one case may not do so in another.
2. The judge was entitled to consider proportionality, the modest size of the claim, the fact that the council and contractor were represented at trial but made common cause to defeat the claimant’s claim, and the absence of any issues requiring determination between them.
3. On the facts, there was no real difference between the council’s duty under the Occupier's Liability Act 1957 and the contractor’s contractual duty. If the council had been liable, it could have passed that liability on to the contractor. Both parties’ defences depended on the same contention: that the hole could not reasonably have been discovered and dealt with before the accident.
4. The costs order was therefore well within the judge’s discretion. The contractor had no real prospect of persuading the Court of Appeal to interfere with it.

• Court of Appeal (Civil Division) — On 29 August 2001, the renewed application for permission to appeal against the costs order was refused.
• Watford County Court — His Honour Judge Kenny dismissed the personal injury claim and the council’s Part 20 claim. He awarded the contractor the costs of filing a defence but made no further order for costs in the Part 20 proceedings.