Keaney & Ors v Lambrianou

Under Part 44 of the Civil Procedure Rules, the court has a wide discretion when deciding costs. It must consider all the circumstances and have regard to the overriding objective. An unusual costs order is not, without more, an error of principle. A judge may choose among several permissible orders, including an order that costs be shared between the parties or no order as to costs. Pro bono representation and the absence of a solicitor’s bill do not require the court to adjust the order so that the parties bear equal net expenditure. An appellate court will not interfere merely because another order might have been made. The relevant question is whether the judge acted outside the discretion conferred by the rules or erred in principle.

The claimants, three builders trading as TCK Roofing and Building Contractors Ltd, claimed the balance of the price for building work carried out for the defendant, who counterclaimed for defective workmanship. Following trial in the Mayor’s and City of London Court, His Honour Judge Marr-Johnson gave judgment for the claimants on the claim and for the defendant on the counterclaim, and made a split costs order.

The defendant, who had been represented pro bono, sought permission to appeal against the order for costs incurred before the claimants’ Part 36 offer. He argued that the order was unfair because he had no solicitors’ costs to set off against his liability to pay half the claimants’ costs. The issue was whether the judge had erred in principle or acted contrary to the overriding objective.

1. Application refused. The proposed appeal had no real chance of success.
2. Part 44 of the Civil Procedure Rules gives the court a very wide discretion as to costs. In exercising it, the court must have regard to all the circumstances and to the overriding objective.
3. The judge’s order that each party should bear half of the other’s costs incurred before 15 March 2001 was unusual, but it was an order the judge was plainly entitled to make. The judge was also entitled to assess the position by reference to the order he would have made had the defendant remained a litigant in person.
4. The defendant’s pro bono representation did not require a different order. The absence of a bill of costs on his side did not establish that the judge had denied the parties equal footing or acted disproportionately. The judge might have made a different order, including no order as to costs, but the availability of other options did not justify appellate intervention.
5. There was no arguable error of principle and no basis for contending that the order was contrary to the overriding objective. The application was dismissed with no order as to costs.

• Court of Appeal (Civil Division): permission to appeal against the costs order was refused; the proposed appeal had no real chance of success. The application was dismissed with no order as to costs: [2001] EWCA Civ 1585.
• Mayor’s and City of London Court: His Honour Judge Marr-Johnson entered judgment for the claimants for £12,450 plus £4,100 interest, gave judgment for the defendant on his counterclaim for £15,690, and made the challenged split costs order.