Hall v Harris & Ors

Under CPR Rule 44.3, costs remain a matter of judicial discretion. The general rule that the unsuccessful party pays the successful party may be varied after considering all the circumstances, including conduct, partial success and settlement offers.

A party may be the overall winner while receiving a discounted costs award to reflect concessions made on appeal and an unsuccessful cross-appeal. The court may exclude unnecessary leading counsel costs and need not make a separate order for a minor cross-appeal where its costs cannot readily be separated.

This judgment determined outstanding issues after the Court of Appeal’s main judgment in [2012] EWCA Civ 671. The appellant’s appeal had been allowed to the extent of substituting revised declarations, while the respondents’ cross-appeal had been dismissed.

The court considered the appropriate substantive form of order and the costs of the appeal, cross-appeal and trial. The appellant proposed wider orders and argued that each party should bear its own costs. The respondents sought their costs, subject to the effect of concessions made during the appeal.

Disposition and form of order. Lord Justice Kitchin, giving the judgment of the court, held that the respondents’ draft order accurately reflected the issues raised and the court’s findings. The appellant’s appeal was allowed only to the extent of substituting the revised declarations set out at paragraphs [40], [46] and [52] of the main judgment for those made by the county court. The respondents’ cross-appeal was dismissed. It was too late to re-argue concluded points or introduce new matters which had not been raised or developed at the hearing.

1. Costs discretion. Under CPR Rule 44.3, the court has discretion as to whether costs are payable and in what amount. Although the unsuccessful party will generally pay the successful party’s costs, the court may make a different order after considering all the circumstances, including conduct, partial success and settlement offers. It may award a proportion of costs or limit costs to a particular period.
2. Appeal and cross-appeal costs. The respondents were the overall winners, particularly on the principal issue concerning whether the right of common was exercisable annually or once every three years. Their concessions concerning vehicles, noxious weeds and access materially affected the fair result. The respondents’ costs were therefore discounted. The failed cross-appeal did not justify a separate order because it occupied little hearing time and its costs could not readily be separated.
3. Leading counsel. The appellant was not required to bear the costs of leading counsel because the court considered that his attendance had not been necessary.
4. Orders. The respondents were awarded 75% of their overall costs of the appeal and cross-appeal, excluding leading counsel’s costs. The county court’s order requiring the appellant to pay the trial costs was left undisturbed because the need for the appeal concessions had not been properly developed before the trial judge.

• Court of Appeal (Civil Division) — In the main judgment, [2012] EWCA Civ 671, the appellant’s appeal was allowed to the limited extent reflected in revised declarations and the respondents’ cross-appeal was dismissed. This judgment settled the substantive order and costs.
• Worcester County Court — His Honour Judge Pearce-Higgins QC made the original order on 4 April 2011, with amendments dated 22 June 2011 and 2 March 2012, and directed the appellant to pay the trial costs. No citation is stated in the judgment.