Higson & Anor v Guenault & Anor

The ordinary rule that costs follow the event remains appropriate where fresh evidence is admitted on appeal but the successful party was not unreasonable in resisting it. This is particularly so where the losing party could have obtained the evidence with reasonable diligence for trial and the evidence was admitted only to ensure that the dispute was decided on the true facts. The court may nevertheless reduce costs on summary assessment where individual items are excessive or duplicative.

After the Court of Appeal dismissed the underlying boundary dispute appeal, reported at [2014] EWCA Civ 703, it considered the parties’ costs. The appellants had obtained the original 1921 conveyance after trial. The court admitted it as fresh evidence, but the result remained in the respondents’ favour. The respondents sought their appeal costs. The appellants accepted some liability but argued that the respondents had acted unreasonably in resisting the fresh evidence and that the costs schedule was excessive. The central issues were whether costs should follow the event and what sum should be allowed on summary assessment.

1. Entitlement in principle. The respondents were the successful parties on the appeal. The ordinary rule that costs follow the event was therefore the correct starting point and, in the circumstances, the correct conclusion.
2. Fresh evidence. The original 1921 conveyance and plan had been admitted because the trial judge had relied on an inaccurate certified copy. The appellants could have obtained the original with reasonable diligence before trial. The evidence was admitted to ensure that the issue was decided on the true facts, not because the respondents’ position was unreasonable. Its admission did not justify depriving the respondents of their costs.
3. Summary assessment. The court accepted that certain parts of the respondents’ schedule were excessive or duplicated work. Reductions were justified for telephone attendances, documents, grounds of appeal, instructions to counsel, counsel’s advice and conference, the respondents’ notice, examination of the appellants’ skeleton argument, transcripts and correspondence. There was also no need for a partner to check bundles and skeleton arguments.
4. The respondents’ appeal costs were summarily assessed at £18,916. The appellants were ordered to pay that sum, with or without VAT as confirmed by the respondents, within 14 days of the judgment and costs order being handed down.

• Court of Appeal (Civil Division). The underlying appeal was dismissed on 21 May 2014, as reported at [2014] EWCA Civ 703. This judgment determined the consequential costs issue.
• Lancaster County Court. District Judge Forrester decided the underlying boundary dispute. The Court of Appeal retained the judge’s substantive orders in principle, subject to minor wording amendments.