OBG Ltd & Anor v Allan & Ors

After mixed success on an appeal and cross-appeal, the appellate court may apportion costs by reference to the issues won and lost, including by making a percentage order. Costs of a separate, unsuccessful permission application may be left to lie where they fall. The appellate court may correct the financial terms of the order below where the parties agree the proper damages and interest, and may remit unresolved consequential matters. Costs below can be left to the first-instance judge in light of the appellate judgments. Permission to appeal may be refused by the Court of Appeal while the ultimate decision whether to hear an appeal remains with the House of Lords.

The claimants had succeeded before His Honour Judge Maddocks, sitting as a deputy judge of the High Court, in the Chancery Division at Manchester District Registry. Allan, Stevenson and Penningtons appealed, and the claimants brought a cross-appeal. Following the Court of Appeal’s substantive judgments, consequential questions remained concerning the form of the order, the amount of damages and interest, costs in the Court of Appeal, costs below, and permission to appeal. The present judgment determined those matters.

1. Form of order. The order below was set aside to the extent necessary to reflect the parties’ agreement that damages were £244,000 and interest was £140,527.02. Those sums were ordered to be paid. Any other questions arising from the Court of Appeal’s judgments which remained unresolved were remitted to the judge, with the parties expected to agree what they could. The court also recorded that a point in the receivers’ skeleton argument would not be pursued if the majority decision stood.
2. Costs in the Court of Appeal. The appellants were the successful parties overall, but the claimants had succeeded on some issues. The appropriate order was therefore that the claimants pay 80% of the costs of the appeal and cross-appeal to the receivers. The costs of the application for permission to appeal before Neuberger LJ were to lie where they fell.
3. Costs below. An earlier costs order made by the judge on 18 December 2002 was left undisturbed by agreement. The judge was left to determine the costs of the proceedings before him in light of the Court of Appeal’s judgments.
4. Permission to appeal. The Court of Appeal refused permission to appeal. The question whether the House of Lords should hear the proposed appeal was left to that House. The court stated that the point concerning the proviso in the order was not determinative.

1. Court of Appeal (Civil Division). Following the substantive judgments, the court varied the financial order, made directions on costs, and refused permission to appeal: [2005] EWCA Civ 172.
2. High Court of Justice, Chancery Division, Manchester District Registry. His Honour Judge Maddocks, sitting as a deputy judge of the High Court, made the order from which the appeal and cross-appeal arose. The citation is not stated in the judgment.