Hatton & Anor v Connew & Anor

Where an appeal results in a retrial on some issues but not others, costs should reflect the self-contained issues on which each party has succeeded. The court may apportion costs by assessing the papers, time, complexity and relative importance of each issue; physical size alone is not a reliable measure. An offer relevant to the eventual outcome of the litigation may not determine costs of a discrete appeal where the result remains uncertain. Costs of unresolved issues should be reserved to the retrial judge. Where the issues are clear and the hearing short, the appellate court may summarily assess costs, normally on the standard basis where the offer has no bearing on the assessment. A payment on account may be apportioned and set off against the appeal costs.

The defendants appealed against orders made by HHJ Moloney QC in the Chelmsford County Court. In an earlier judgment, the Court of Appeal allowed the appeal concerning the Bank Strip and the Triangle and remitted those issues for retrial before a different judge, while dismissing the appeal concerning the Swathe: [2013] EWCA Civ 1560.

This judgment resolved the consequential issues. They included the form of order, proposed restrictions on further case management and amendment of pleadings, the allocation and assessment of appeal costs, the costs relating to the boundary issue below, and the appropriate payment on account pending retrial.

1. The court gave effect to its earlier decision. The appeal was allowed in relation to the Bank Strip and the Triangle, with those issues remitted for rehearing before a different judge, and dismissed in relation to the Swathe. The simple form of order proposed by the defendants was appropriate.
2. It was inappropriate to direct that there should be no further case management or to restrict amendment of the pleadings. No application to amend was before the court. Any such application should be considered on its merits by the judge before whom it was made, who must retain the ability to give necessary trial-management directions.
3. The appeal issues concerning the Bank Strip and the Triangle were self-contained. The defendants had succeeded in obtaining a retrial which the claimants had resisted. The claimants’ earlier offer did not affect the appeal costs because the eventual outcome of the litigation remained uncertain. Seventy per cent of the appeal costs was fairly attributable to those issues. The attribution was assessed by reference to the papers, the trial judgment, the skeleton arguments, the time spent, the complexity and relative importance of the issues. The size of the land was not a proper basis for attributing more costs to the Swathe.
4. The claimants were entitled to 30% of their appeal costs relating to the Swathe. The court summarily assessed the parties’ costs because the issues were clear, the estimates were similar and the hearing lasted less than one day. Assessment on the standard basis was appropriate because the offer had no bearing on the discrete appeal issues. The defendants’ costs were assessed at £20,300 and the claimants’ at £19,150, producing a net payment of £8,465 by the claimants.
5. The costs relating to the Bank Strip and the Triangle were reserved to the retrial judge. In relation to the Swathe, the defendants were ordered to pay the claimants’ costs of the boundary issue, with the basis of assessment reserved. The £25,000 payment on account ordered below was apportioned at 30%, producing £7,500, and set off against the appeal costs. The claimants therefore paid the defendants £965.

• Court of Appeal (Civil Division): The present judgment determined the outstanding terms of order and costs consequences.
• Court of Appeal (Civil Division): In the earlier judgment, the appeal was allowed concerning the Bank Strip and the Triangle, those issues were remitted for retrial, and the appeal concerning the Swathe was dismissed: [2013] EWCA Civ 1560.
• Chelmsford County Court: HHJ Moloney QC made the orders from which the defendants appealed.