Paton & Anor v Todd

Costs following an appeal are determined by the court’s overall assessment of the parties’ success, the issues argued, and the costs generated by those issues. A party who obtains a procedural benefit, such as remission for further consideration, may not be treated as the successful party where the principal substantive relief remains unresolved and the party failed on the primary basis of its case. The court may therefore make no order as to appeal costs, leaving each party to bear its own costs, while reserving costs before the remitted decision-maker for later determination.

The appellants challenged a Deputy Adjudicator’s decision concerning ownership of, and rectification relating to, registered land. In the earlier judgment, the High Court held that the appellants had no title to the disputed land and remitted the rectification issue, including costs, to the Deputy Adjudicator for further consideration. This judgment addressed only the costs of the High Court appeal. The central issue was whether the appellants’ partial success in obtaining remission justified an order requiring the respondent to pay some or all of their appeal costs.

1. Disposition. The appropriate order was that there be no order as to the costs of the High Court appeal. Each party was to bear its own costs. Costs, past and future, before the Deputy Adjudicator remained for determination following his final decision on the rectification application.
2. The appellants’ contention that the main issue remained undecided was rejected. The Deputy Adjudicator had determined that they were not entitled to be registered as proprietors of the disputed land. The earlier judgment had agreed with that conclusion, subject only to the precise boundary not being determined by filed plans showing general boundaries.
3. Although remission conferred a benefit which would not have been obtained without the appeal, it did not amount to success in obtaining the substantive relief sought, namely rectification of the respondent’s registered title. The outcome was therefore mixed: the appellants succeeded to some extent, while the respondent resisted the requested rectification.
4. In assessing costs, the court considered the parties’ degree of success and failure on the various issues and the resulting expenditure. The appellants failed on their primary ownership case, which occupied nearly all the hearing and generated substantial work for the respondent. The issue leading to remission occupied comparatively little hearing time and involved limited additional cost.
5. The court considered but rejected both an award of part of the appellants’ costs and an order requiring them to pay the respondent’s costs. Arrangements between the respondent and the Land Registry, including any indemnity, had no bearing on the inter partes costs decision.

• High Court (Chancery Division): In the earlier judgment, [2012] EWHC 1248 (Ch), the court remitted the rectification issue and related costs to the Deputy Adjudicator.
• High Court (Chancery Division): The present judgment determined the costs of the High Court appeal and made no order as to those costs.