Clarke v Meadus

Costs following a successful appeal should reflect the issues on which the parties succeeded and the extent to which late amendments affected the litigation. A successful appellant may recover the costs of the appeal in full where the appeal would have succeeded without the amendment, even though the amendment materially affected the earlier application. Costs of the earlier application may instead be apportioned. Detailed assessment may address proportionality, unnecessary duplication of legal work, appropriate counsel’s fees and the level of any success fee.

The judgment concerned the costs consequences of an earlier successful appeal by Mrs Clarke against Mrs Meadus. The appeal followed an application for summary judgment and strike-out, in which Mrs Clarke had subsequently relied on a later representation and obtained permission to amend by adding paragraph 20A of the APoC.

The court had previously indicated that the appeal would have been allowed even without the later representation. The costs issues were whether the late amendment justified depriving Mrs Clarke of some costs, how the application and appeal costs should be divided, and what directions should govern detailed assessment.

1. Application costs. The late representation was material because it arose after the September 1996 documentation and might have affected whether Mrs Meadus commenced the summary judgment or strike-out application. It was therefore inappropriate for Mrs Clarke to recover all the application costs. Mrs Meadus was ordered to pay two-thirds of those costs, and to repay the costs previously received under the Master’s order.
2. Appeal costs. Mrs Clarke was wholly successful on the appeal. The court found that the appeal would have succeeded even without the amendment. The appeal would also have involved substantial argument about detriment, satisfaction of any equity, the effect of the 1996 documentation and whether it was possible to go behind the beneficial interests declared in the DADT. Mrs Clarke was therefore awarded all her appeal costs.
3. Detailed assessment. The application and appeal costs were to be subject to detailed assessment on the standard basis if not agreed. The costs judge was directed to allow fees appropriate to a junior barrister of 15 years’ call, consider any unnecessary overlap between solicitors, and determine the appropriate success fee. The success fee should not approach 100 per cent.
4. Costs hearing. There was to be no order as to the costs of the costs application. An application for payment on account remained available under CPR 44.3(8).

The judgment followed an earlier successful appeal by Mrs Clarke. The citation of the earlier judgment is not stated in the judgment.