Betts v London Borough Of Ealing

Costs are a matter of judicial discretion. Although the usual approach is for the unsuccessful party to pay the successful party’s costs, that outcome must not follow automatically. The court must consider all the circumstances, including the parties’ conduct, the extent to which proceedings were justified, and the use and cost of expert evidence. The Court of Appeal will interfere with a costs order only in limited circumstances. Permission to appeal should be refused where there is no realistic prospect that a full appeal would justify interference with the lower court’s discretionary decision.

The applicant appealed in person against a costs order made by His Honour Judge McDowell on 14 June 2002. The lower court had allowed his appeal against a notice issued by the respondent local authority under section 189 of the Housing Act 1985 concerning repairs to his home.

The lower court ordered each party to bear its own costs and directed that the parties share equally the fees and expenses of an independent building and surveying expert. The applicant sought permission to appeal and an extension of time, contending that the local authority had conducted the litigation improperly and that the costs order wrongly criticised his conduct. The central issue was whether there was a realistic prospect of the Court of Appeal interfering with the discretionary costs decision.

1. Application refused. The court refused permission to appeal and the associated extension-of-time application.
2. Costs fall within a wide judicial discretion. The general rule that the unsuccessful party pays the successful party’s costs is not universal and cannot be applied as a rubber stamp. The judge must examine all the circumstances of the litigation.
3. The lower court was entitled to conclude that the local authority had at least some justification for issuing the notice, while the applicant’s response and conduct had been excessive. It was also entitled to order that the independent expert’s costs be shared, particularly where the expert had been sought at the applicant’s suggestion and had confirmed that substantial repair work was required.
4. The circumstances in which the Court of Appeal will interfere with a costs order are limited. The applicant’s disagreement with the lower judge’s assessment did not disclose a realistic prospect of a successful appeal. The lower court’s order therefore stood.

• Court of Appeal (Civil Division): Application for permission to appeal and an extension of time refused.
• Wandsworth County Court: On 14 June 2002, His Honour Judge McDowell allowed the applicant’s appeal against the notice but ordered each party to bear its own costs and to share equally the independent expert’s fees and expenses.