Price & Anor v Nunn

When determining costs after a partly successful strike-out application, the court should balance the parties’ success and failure on the separate issues, together with relevant conduct and the work generated by each party’s position. A proportionate order may be made even where both parties have advanced substantial criticisms of the other.

A party has no real prospect of improving the result by appealing reasoning which is likely to be academic or by challenging findings that do not materially affect the outcome. Strike-out principles based on issue estoppel or abuse of process do not, without more, infringe the right to a fair trial.

This judgment concerned consequential matters following the court’s earlier judgment in the same proceedings, [2012] EWHC 1251 (Ch). The court had held that the Defendant was issue-estopped from asserting a private right of way over the lower track, while remaining able to assert a public right of way for specified purposes.

The parties disagreed about the form of declarations, the pleading orders, costs, permission to appeal and a stay. The central questions were what orders should give effect to the earlier conclusions, how costs should reflect the parties’ relative success and conduct, and whether either party had a real prospect of improving the result on appeal.

1. Form of order. The order should declare that the Defendant was bound by issue estoppel from asserting that Woodside Bungalow benefited from a private right of way over the lower track. It should also declare that no cause of action estoppel or issue estoppel prevented the Defendant from asserting a public right of way for the specified defensive and declaratory purposes, that doing so was not an abuse of process, and that claims concerning future interference and public nuisance should not be struck out.
2. The order should strike out the Defendant’s pleaded claim to a private right of way over the lower track. No declarations should be made concerning the upper track or the Pitch because those issues had not been determined. The Defendant was required to file an amended Defence and Counterclaim within 21 days after the stay was lifted.
3. Costs. The court could not adopt either party’s proposed approach. It balanced success and failure on the various issues, the scope of the application, the time occupied by the public-right-of-way issue, the Defendant’s failure on the private-right-of-way issue, and the costs generated by the parties’ positions. The Defendant was ordered to pay one third of the Claimants’ costs of the strike-out application. The Claimants were ordered to pay the Defendant’s costs of the 6 December 2011 hearing. The Claimants were awarded their costs of defending the private-right-of-way claim, subject to detailed assessment if not agreed.
4. Permission to appeal. Permission was refused to both parties. The Claimants’ proposed appeal concerned reasoning that was likely to be academic. The Defendant had no real prospect of improving upon the result. The court was satisfied that applying issue-estoppel and abuse-of-process principles to strike out claims did not infringe the Defendant’s right to a fair trial under the Human Rights Act 1998.
5. The proceedings were stayed pending any application to the Court of Appeal for permission to appeal and any further stay.

The judgment followed the court’s earlier judgment in the same proceedings, [2012] EWHC 1251 (Ch). It was not itself an appeal.