Wiltshire v Powell & Ors

On an unsuccessful appeal, the usual order for costs remains appropriate where the appellant’s own failure to bring all relevant parties before the court caused a later action. The fact that respondents stood by during the original proceedings, without participating or seeking to participate, does not by itself justify a different costs order.

This was a costs judgment following an unsuccessful appeal from Lincoln County Court before Mr Recorder Maw. The second, third and fourth respondents sought their costs. The appellant argued that they had stood by while the original action proceeded and had neither participated nor sought permission to do so. The central issue was whether that conduct justified departing from the usual costs order. The court also considered and refused the appellant’s application for leave to appeal to the House of Lords.

1. Costs. The appellant was unsuccessful. The court rejected the argument that the second, third and fourth respondents should be deprived of their costs because they had stood by during the original action without taking part or asking to take part.
2. The court considered that argument to overlook a major aspect of its earlier judgments: the appellant’s own failure to bring all relevant parties before the court on the first occasion had given rise to the second action. In those circumstances, the complaint against the respondents did not justify any departure from the usual order for costs on an unsuccessful appeal.
3. Leave to appeal. The application for leave to appeal to the House of Lords was refused. The court indicated that, if the matter interested their Lordships, an application there might have greater prospects.

1. Court of Appeal (Civil Division): On appeal from Lincoln County Court, the court ordered the unsuccessful appellant to pay the usual costs of the second, third and fourth respondents and refused leave to appeal to the House of Lords: [2004] EWCA Civ 626.
2. Lincoln County Court: Decision under appeal before Mr Recorder Maw; no citation or substantive order is stated in the judgment.