London Borough of Tower Hamlets v Barrett & Anor

In assessing costs after appellate litigation, the court may consider the litigation’s history and all the circumstances when deciding both liability for costs and the basis of assessment. Costs may be awarded on the conventional basis where indemnity costs are not justified. Where a substantial lower-court bill will be added to appellate costs, the court may order a payment on account, while recognising the risk of overpayment following detailed assessment. Proportionality observations made by the appellate and lower courts should be considered by the costs judge. Permission for a further appeal may be refused where the litigation does not warrant it, despite the issue having wider interest.

Alfred Eugene Barrett and Valerie Anne Barrett appealed against the Mayor and Burgesses of the London Borough of Tower Hamlets from proceedings in the Bow County Court before His Honour Judge Bradbury. The supplied judgment concerns the costs consequences of the litigation. The Court of Appeal considered liability for costs in the county court and in the appeal, the appropriate basis of assessment, payment on account, and permission for a further appeal to the House of Lords.

1. Costs. Lord Justice Wall held that, having regard to all the circumstances and the history of the litigation, the defendants should receive their costs in both the county court and the Court of Appeal. The costs were to be assessed on the conventional basis. The court declined to order indemnity costs. Assessment of both bills was directed to the costs judge.
2. Payment on account. The court considered it appropriate for the local authority to make a payment on account. In reaching that decision, it took into account the substantial county-court bill, which would be added to the costs of the appeal, and the risk that the sum ordered might exceed the amount ultimately assessed. The local authority was ordered to pay £30,000 within 28 days.
3. Proportionality. The costs judge was directed to take into account the observations on proportionality made by the Court of Appeal and by the judge below when assessing the costs.
4. Further appeal. Although the issue was of interest, the litigation did not warrant the Court of Appeal granting permission to appeal to the House of Lords. Any further application had to be made to the House of Lords. Lord Justice Neuberger agreed.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 1073, the court determined the costs of the county-court proceedings and the appeal, ordered payment on account, and refused permission for a further appeal.
2. Bow County Court: The appeal was from proceedings before His Honour Judge Bradbury. No separate citation or merits outcome is stated in the supplied judgment.