Brennan v Kettell & Ors

In a costs judgment following a successful Part 20 claim, the successful party should receive the costs of the Part 20 appeal and the lower-court hearing attributable to that claim where liability for those costs is not disputed. A separate question about the costs of defending the principal claim may be remitted to the judge who heard the matter, particularly where reasonableness affects the outcome. That judge may determine whether the issue is a discretionary costs matter or part of the assessment of damages. Where other costs require detailed assessment, appeal costs may also be left to detailed assessment rather than summarily assessed.

This was an appeal from the Chancery Division, Liverpool District Registry, where His Honour Judge Maddocks sat as a Deputy High Court Judge. The Kettells, who had brought a Part 20 claim, were successful against Royal Bank of Scotland plc.

The Court of Appeal was asked to determine the consequential costs orders, including whether the Bank should pay the Kettells’ costs of defending Brennan’s claim and whether the appeal costs should be summarily assessed.

The court dealt with costs following the successful Part 20 claim appeal.

1. Costs of the Part 20 claim. There was no dispute that the successful Part 20 claimants should receive their costs of the Part 20 claim appeal and of the part of the hearings below that led to that claim. Those costs were payable by the unsuccessful Bank.
2. Costs of defending the principal claim. Whether the Bank should also pay the Kettells’ costs of and incidental to Brennan’s claim could depend on matters including whether it was reasonable for them to defend the proceedings. That issue, together with assessment of the costs, was remitted to His Honour Judge Maddocks. He was best placed to decide whether to determine the application as a matter of discretion or as part of the assessment of damages.
3. Assessment of appeal costs. The court declined to make a summary assessment. Since the other costs in the proceedings required detailed assessment, the appeal costs were also left to detailed assessment. The costs judge was directed to the court’s observations about the simplicity of the issue and the over-elaboration by both sides in contesting it.

• Court of Appeal (Civil Division): On 25 July 2003, the court made costs orders following the successful Part 20 claim appeal. It remitted the disputed costs issue to His Honour Judge Maddocks and directed that appeal costs be subject to detailed assessment.
• Chancery Division, Liverpool District Registry: The underlying proceedings were heard by His Honour Judge Maddocks sitting as a Deputy High Court Judge. The judgment gives no further citation or disposition for that decision.