Toth v Jarman

In apportioning costs between issues, a trial judge familiar with the evidence may make a broad percentage assessment. An appellate court should not replace that evaluation with a simplistic calculation based on witness numbers. An Article 2 Convention argument cannot succeed where the relevant events occurred before the Human Rights Act was in force. An unsuccessful legally aided appellant may be ordered to pay the respondent’s costs, subject to the applicable statutory and procedural costs-protection regime.

The appellant’s substantive claim had been dismissed in the High Court. The Court of Appeal had given its substantive judgment on 19 July 2006. This further hearing concerned the apportionment of costs between negligence and causation, an Article 2 Convention argument concerning his son’s death in October 1993, the costs consequences of legal aid, an application to adjourn to obtain recordings or transcripts with a view to reopening the appeal, and leave to appeal to the House of Lords.

The Court of Appeal unanimously resolved the outstanding matters as follows.

1. Apportionment of costs. The trial judge was entitled to assess broadly the proportion of preparation and presentation attributable to the negligence issue, on which the appellant had succeeded, and causation, on which he had failed. The number of witnesses dealing with each issue did not provide a proper substitute for that assessment. The Court saw no reason to doubt that the judge had adopted the appropriate approach or that the 30 per cent deduction was broadly accurate.
2. Article 2. No breach of Article 2 was demonstrable. The death occurred in October 1993, when the Human Rights Act was neither in force nor in draft. The point was not pursued at the hearing.
3. Costs and legal aid. The respondent was entitled in principle to an order for the reasonable costs of the appeal under CPR 44.3(2)(a). The appellant was an unsuccessful legally aided appellant, so the order was subject to section 11 of the Access to Justice Act, the relevant CPR Part 44 Practice Direction provisions, and regulation 5(3)(b) of the Community Legal Service (Cost Protection) Regulations 2000. Costs incurred before legal aid were payable on the standard basis, subject to detailed assessment. Costs incurred thereafter were to be determined by a costs judge, with provision for payment from public funds subject to the regulatory condition. Lady Justice Arden also considered that no conduct by the respondent justified a further discount.
4. Further applications. The application to adjourn so that the appellant could obtain and consider recordings or transcripts was refused. The submissions had already been comprehensively dealt with, and there was no likelihood that access to the material would change the court’s view. Leave to appeal to the House of Lords was also refused.

• Court of Appeal (Civil Division). Following the substantive judgment handed down on 19 July 2006, the court determined the remaining costs issues, refused the adjournment application, ordered costs subject to legal-aid protection, and refused leave to appeal to the House of Lords: [2006] EWCA Civ 1625.
• High Court of Justice, Queen’s Bench Division. The appellant’s claim had been dismissed. The trial judge had made a 30 per cent deduction in the costs assessment.