Stanley & Anor v Rawlinson & Anor

An appellate court should not disturb a first-instance costs order merely because it forms a more favourable view of an expert’s objectivity. Where the order’s rationale remains sound, it should stand. A clear transcript may establish that an order as drawn contains a slip and that the judge intended the successful party to recover all costs relating to particular evidence. Relative success at trial may justify an adjustment to trial costs, but it does not displace the usual costs consequences of a wholly unsuccessful appeal. Refusal to mediate, without more, provides no principled reason to depart from those consequences. The unsuccessful appellants must therefore pay the respondents’ appeal costs, subject to detailed assessment if not agreed.

The appellants challenged a judgment and order of Chelmsford County Court made by His Honour Judge Moloney QC. The order was dated 15 January 2010, drawn up on 21 January 2010 and amended on 11 February 2010 under the slip rule. The appeal against the judge’s judgment and order had been dismissed. This judgment concerned the costs of that appeal and whether the judge’s order should be disturbed, particularly his allocation of the costs of expert evidence.

1. Disposition. The court treated the appeal as wholly unsuccessful. It saw no reason to disturb the judge’s order as to costs in the court below and ordered the appellants to pay the respondents’ costs of the appeal, subject to detailed assessment on the standard basis if not agreed.
2. Expert evidence costs. The transcript of the telephone hearing made the judge’s intention clear. He intended the claimants to bear the entirety of the defendants’ costs of and occasioned by the expert evidence. The order as originally drawn therefore contained a slip. The fact that the appellate court formed a more favourable view of the expert’s objectivity did not justify reconsidering the costs order, because its rationale remained unaffected: the expert evidence related entirely to an issue on which the defendants had been wholly successful.
3. Relative success and appeal costs. The judge had already discounted the recoverable costs of the action to reflect relative success on issues at trial. That adjustment did not affect the usual consequences of a wholly unsuccessful appeal. The claimants’ submissions concerning mediation were irrelevant to the appeal costs. The defendants’ refusal to mediate, following a recommendation by Rix LJ, did not provide a principled basis for penalising them, particularly since their position had been vindicated and they had also made offers to compromise the appeal.

• Court of Appeal (Civil Division): dismissed the appeal against the County Court judgment and order and ordered the appellants to pay the respondents’ costs of the appeal.
• Chelmsford County Court: His Honour Judge Moloney QC made an order dated 15 January 2010, drawn up on 21 January 2010 and amended on 11 February 2010 under the slip rule. The order required the claimants to bear the defendants’ costs of the expert evidence.