Harbour Castle Ltd v David Wilson Homes Ltd

When an appeal is allowed but applications remain unresolved, the Court of Appeal may remit them to a High Court judge. Success does not necessarily secure the successful party’s costs, particularly where its conduct contributed to the further dispute. The court may make the costs of the appeal and hearing below costs in the claim, refuse an interim payment on account of costs, and require repayment of an earlier interim costs payment into escrow or a joint solicitors’ account without interest. Costs of a security-for-costs application may be ordered payable by the applicant, subject to detailed assessment deferred until the litigation ends.

Harbour Castle Ltd v David Wilson Homes Ltd, [2012] EWCA Civ 572, was an appeal from the High Court of Justice, Queen’s Bench Division, before His Honour Judge Seymour QC. The appeal had been allowed. The supplied judgment concerns consequential orders rather than the merits. The parties agreed the form of declaration and that unresolved applications should return to the High Court. The disputed matters concerned costs, an interim payment sought by the appellant, repayment of £150,000 paid under an order dated 22 July 2011, and the costs of a security-for-costs application. The central issue was what orders should follow the successful appeal.

The appeal had been allowed. The Court of Appeal addressed the consequential orders and directed that the outstanding applications be dealt with by a High Court judge.

1. Costs. Although the appellant succeeded, the court considered its conduct at first instance and the extent to which it had contributed to the order giving rise to the further dispute. The relevant costs below and the costs of the appeal were therefore ordered to be costs in the claim.
2. Interim payment sought by the appellant. In consequence of the costs order, no interim payment on account of costs was made. The appellant’s application for £88,000 was refused.
3. £150,000 interim payment. The sum paid under the High Court order of 22 July 2011 was to be paid by the respondent into an escrow account, a joint solicitors’ account, or another arrangement agreed by the parties. The court made no order for interest.
4. Security-for-costs application. The appellant accepted liability for the respondent’s costs of that application but disputed the amount. Those costs were ordered payable by the appellant, subject to detailed assessment. The assessment was deferred until the conclusion of the litigation.

The parties were directed to agree the precise form of order incorporating the non-contentious directions and the court’s rulings.

• Court of Appeal (Civil Division): The appeal was allowed in Harbour Castle Ltd v David Wilson Homes Ltd, [2012] EWCA Civ 572. Consequential costs and payment orders were made, and unresolved applications were remitted to a High Court judge.
• High Court of Justice, Queen’s Bench Division: Proceedings before His Honour Judge Seymour QC included an order dated 22 July 2011 requiring payment of £150,000 on account of costs. No citation or fuller disposition is stated in the judgment.