Wall v Collins & Anor (Supplementary)

On a supplementary appeal, the Court of Appeal must confine its order to issues properly before it and ensure that the relief gives effect to its judgment. It cannot determine unrelated rights or consequential matters not raised on the appeal; those matters must be returned to the appropriate lower court. Where an appellant substantially succeeds, an offer confined to a narrower right does not ordinarily justify depriving the appellant of appeal costs if rejection of the offer was reasonable in light of the judgment. Costs below may be dealt with by a simple no-order direction where success is mixed and detailed apportionment would risk further litigation.

This was a supplementary judgment on an appeal by Keith John Wall from an order of His Honour Judge Pelling QC in the Chancery Division, Manchester District Registry, claim 5BL01209. In the main judgment, [2007] EWCA Civ 444, the Court of Appeal had indicated that relief should include a declaration concerning South Road and had deferred costs. The parties then made wider submissions concerning Back Street and other rights. The court had to settle the declaration and determine the costs of the appeal and of the proceedings below.

The Court of Appeal substantially upheld the appellant’s position and varied the declaration and costs orders.

1. The court’s supplementary jurisdiction was confined to issues properly before it. Submissions concerning Back Street and other rights went beyond the South Road issue determined on appeal. In the absence of agreement on the form of the order or the terms of an undertaking, the court’s task was to make an order giving effect to its judgment. It could not rule on other issues, which had to be referred back to the County Court if necessary.
2. The first-instance declaration was varied by substituting a declaration that the appellant, as owner of 231 Leigh Road and the adjoining Back Land, enjoyed under the grant contained in the assignment dated 25 February 1911 a right of passage over and along South Road. South Road was the passageway on the respondents’ property south of the dwelling, linking Back Road to Leigh Road.
3. The appellant had substantially succeeded in the Court of Appeal and was therefore entitled in principle to his appeal costs. An offer dated 21 February 2006 proposed only a right of way on foot. In light of the appellate judgment, the appellant had been entitled to reject that offer, so it did not justify departing from the usual costs order.
4. The costs below were reconsidered because the appellant had succeeded on two of the three substantive issues. Given the parties’ mixed success, the neighbour-dispute context, the difficulty of apportioning costs, and the desirability of avoiding further costs litigation, the appropriate order was no order as to costs below. The respondents were ordered to pay the appellant’s appeal costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): The substantive appeal was determined in [2007] EWCA Civ 444. This supplementary judgment, [2007] EWCA Civ 724, settled the relief and costs.
• Chancery Division, Manchester District Registry: The appeal arose from an order of His Honour Judge Pelling QC in claim 5BL01209. At first instance, the appellant succeeded on obstruction of Back Street, while the respondents succeeded on the passageway, party wall and land registration issues. The Court of Appeal varied the declaration and costs orders.