London Borough of Lambeth v Headlam

An appeal may be disposed of by consent where the Court of Appeal approves the parties’ agreement. On allowing the appeal, the court may set aside the lower court’s order, restore a dismissed counterclaim and remit it for rehearing before a different judge. The appellate court may also vary the costs order below and assess the costs of the appeal.

The London Borough of Lambeth appealed from an order of Lambeth County Court, made by His Honour Judge Simpson, which dismissed the defendant’s counterclaim and made no order as to costs. Before the Court of Appeal, the parties agreed that the appeal could be disposed of by consent. The central issues were whether the agreement should be approved and what consequential orders should follow.

1. The Court of Appeal approved the parties’ agreement and allowed the appeal by consent. The court recorded that it had formed the preliminary view that the judge below had approached the case in a plainly wrong manner.
2. The County Court order dismissing the counterclaim was set aside. The counterclaim was restored and remitted to the County Court for hearing before a judge other than His Honour Judge Simpson.
3. The appellant was awarded the costs of the appeal. Those costs were assessed at £18,000, reflecting a broad-brush deduction of just under £2,500 from the schedule, principally because of excessive work in preparing documents.
4. The order below was varied. The respondent, as defendant, was awarded the costs of the dismissed claim. The costs of the counterclaim remained at large. The costs thrown away by the hearing before the judge were agreed at £200 and were ordered to be paid by the claimant to the defendant.

1. Court of Appeal (Civil Division), [2007] EWCA Civ 433 : appeal allowed by consent; the County Court order was set aside, the counterclaim restored and the matter remitted for rehearing before a different judge.
2. Lambeth County Court, before His Honour Judge Simpson: the counterclaim was dismissed and there was no order as to costs. That order was set aside or varied on appeal.