Dooley v Parker & Anor

Where a defendant contests a claim for specific relief and concedes that relief in full only at or shortly before trial, the claimant should normally be treated as successful in relation to that relief for costs purposes. The court need not assess the hypothetical trial outcome, as it may in compromises between competing positions. A party who abandons a separate issue may still recover costs relating to relief obtained, while the overall order reflects costs incurred on the abandoned issue. CPR 44.3 permits an order for a proportion of a successful party’s costs. It does not prevent such an order because costs on abandoned issues may also be disallowed on assessment; the court must avoid double penalisation.

The claimant brought proceedings concerning alleged prescriptive vehicular rights of way, stopping and parking over neighbouring land. She abandoned the parking claim on 1 May 2001. On 30 May 2001 the defendants compromised the remaining right-of-way claim, conceding the claimant’s right to use the route for vehicles, while costs remained unresolved.

District Judge Ewing subsequently ordered that the parties bear their own costs. The claimant appealed, arguing that she had succeeded on the right-of-way issue and should receive all, or a substantial proportion, of her costs. The central issues were how success should be assessed after compromise and whether costs could be apportioned without imposing a double penalty.

Appeal allowed unanimously. Dyson LJ gave the leading judgment, Wall J agreed and added observations, and Rix LJ agreed with both judgments.

1. The claimant had pursued two principal issues. She abandoned the parking claim on 1 May 2001, but the defendants continued to contest the unlimited vehicular right of way until the compromise on 30 May. Because that relief was conceded in its entirety only at or shortly before trial, the claimant should normally be treated as the successful party in relation to it.
2. The court distinguished the approach in Brawley v Marczynski [2002] EWCA Civ 756. In compromise cases of that kind, including those discussed in Boxall v London Borough of Waltham Forest, the court may need to evaluate what would probably have happened if the action had been fought. That assessment was unnecessary here because the right-of-way relief was conceded in full.
3. The court rejected the suggested interpretation of Shirley v Caswell [2001] CLR 1 as imposing a general bar on proportionate costs orders. CPR 44.3(6) permits an order that a paying party pay only a proportion of the receiving party’s costs. Under CPR 44.3(7), such an order should be made, if practicable, instead of an order for costs relating only to a distinct part of the proceedings under CPR 44.3(6)(f).
4. Shirley established only the need to avoid double penalisation. If a costs order excludes costs that will also be disallowed on assessment, the costs judge must take the order and its reasons into account.
5. The district judge had a broad discretion, and appellate courts should be slow to interfere. Nevertheless, the costs order did not give sufficient weight to the claimant’s success after 1 May. The appropriate order was that each side bear its own costs up to 1 May 2001, with the claimant receiving her costs thereafter. The appeal costs were awarded at 50 per cent.

• Court of Appeal (Civil Division): On appeal from the order of District Judge Ewing at Wrexham County Court dated 31 May 2002, the court allowed the appeal and substituted a costs order awarding the claimant costs from 1 May 2001, with appeal costs at 50 per cent. The judgment is reported at [2002] EWCA Civ 1188.