Gardner v Parker

Where each side has achieved partial success and partial failure on an interlocutory or appellate hearing, the appropriate costs order may be no order as to costs, leaving each side to bear its own costs. Disputes about whether an oral hearing is necessary should, where possible, be recorded in correspondence. The court endorsed resolving such issues on paper, even where the parties cannot agree, where that course is sensible and practical.

This was an appeal to the Court of Appeal from the High Court before Mr Justice Blackburne. The supplied order records the Court of Appeal’s decisions on costs and on the appellant’s proposed further appeal to the House of Lords. The substantive disposition of the appeal from the High Court is not stated. The court addressed the payment out of money lodged for the costs order below, a conditional stay pending any application for permission to appeal, and the costs of the Court of Appeal hearing.

1. Further appeal. The application for permission to appeal to the House of Lords was refused. If an application was lodged within 28 days, the court directed a stay of the order for costs of the appeal and of the order for payment out of £120,000, continuing if permission was granted until determination of that appeal or further order. The stay was conditional on £45,000 being paid into court or an agreed joint account.
2. Costs of the appeal. The appellant was ordered to pay the respondent’s costs of the appeal to the Court of Appeal. Payment out of the £120,000 lodged in respect of the costs order below was ordered, subject to the stated stay. The costs were to be assessed if not agreed.
3. Costs of the hearing. There was no order as to the costs of the day’s hearing. The court considered that each side had been partly successful and partly unsuccessful. It also declined to resolve, without documentary evidence, a disagreement between counsel about what had been said concerning the necessity for an oral hearing.
4. Procedural guidance. Where a party proposes that a matter be dealt with on paper, and the other party resists, the position should be documented and recorded in correspondence. The court endorsed the common-sense desirability of resolving such issues on paper where possible, even if agreement cannot be reached.

• Court of Appeal (Civil Division): heard an appeal from the High Court and refused permission for a further appeal to the House of Lords; the supplied order records costs and procedural directions but does not state the substantive outcome of the appeal.
• High Court: decision under appeal before Mr Justice Blackburne; the citation and substantive order are not stated in the judgment.