Marsden v Elston & Anor

An appellate court may correct a drawn order which fails to reflect its intention that a lower court’s costs order should stand. A reduction in the amount recovered on appeal does not automatically convert a multi-track costs order into a fast-track order. The paying party may still challenge the reasonableness and proportionality of the costs on detailed assessment.

The claimant had obtained judgment for approximately £42,000 plus interest in the Norwich County Court. The case had been reallocated from the fast track to the multi-track, and costs were awarded on the multi-track basis. On an earlier appeal, the Court of Appeal reduced the judgment to approximately £8,000 plus interest and intended the costs order below to remain in force.

The drawn appellate order incorrectly purported to set aside the lower court’s order, including its costs order. The matter was relisted to determine whether the order should be corrected and whether the reduction in damages altered the applicable costs track.

Lord Justice Peter Gibson gave the judgment of the court. Lord Justices Laws and Longmore agreed entirely. The court corrected the appellate order and confirmed that the lower court’s costs order remained in force on the multi-track basis.

1. The lower court had reallocated the action from the fast track to the multi-track because of its size and complexity. Its costs order was therefore made on the multi-track basis.
2. At the earlier appeal, the parties and the court understood that the lower court’s costs order would stand. The drawn order was incorrect because it purported to set aside that order. The proper course was to correct the order so that it gave effect to the court’s intention.
3. The reduction in the judgment sum did not itself change the basis on which costs had been ordered below. The respondents could argue at detailed assessment that the costs claimed were unreasonable or disproportionate to the amount recovered, but the costs did not thereby become fast-track costs.
4. The respondent was ordered to pay the costs occasioned by the relisting, subject to public funding assessment on the standard basis.

• Norwich County Court: His Honour Judge Dedman gave judgment for the claimant for approximately £42,000 plus interest and awarded costs on the multi-track basis.
• Court of Appeal (Civil Division): On 5 November 2001 the appeal was allowed in part, reducing the judgment to approximately £8,000 plus interest. On relisting, the court corrected the drawn order to preserve the lower court’s costs order: [2002] EWCA Civ 866.