Franklin v Maddison & Anor

An award of costs, including indemnity costs, is a matter for the trial judge’s discretion. The Court of Appeal will not interfere where the judge considered the relevant circumstances and the decision falls within the proper range of discretion. A claim described as wholly without merit may justify indemnity costs. Procedural complaints or shortcomings by the successful party do not require a different order where the judge has taken them into account. The claimant’s ability, or apparent inability, to pay is not determinative of whether the successful party is entitled to a costs order.

The claimant appealed against a County Court order made after a trial before HHJ Hampton in Leicester on 31 August 2012. His claims against the police and the second defendant concerned vehicles recovered during a police investigation. The claim against the second defendant was dismissed as totally without merit, and the claimant was ordered to pay the second defendant’s costs on the indemnity basis.

Permission to appeal was ultimately granted on the limited question whether the indemnity costs order was justified. The claimant argued that the judge had misunderstood the number of vehicles in issue and had failed to take account of the second defendant’s disclosure and pre-action protocol shortcomings.

1. Appeal dismissed. The Court of Appeal unanimously upheld the order requiring the claimant to pay the second defendant’s costs on the indemnity basis.

2. Per Lord Justice Davis, with whom Lord Justice Tomlinson agreed, costs were a matter for the trial judge’s discretion. The judge had conducted the trial, heard the witnesses and considered the circumstances in which the claim was brought. Her conclusion that the claim against the second defendant was wholly without merit, and her decision to award indemnity costs, fell well within the proper range of discretion.

3. The claimant’s complaints about the additional vehicles could not assist him. The judge had refused permission to amend the claim, and that decision could not be reopened on this appeal. In any event, the judge’s acceptance of the second defendant’s evidence meant that the additional claim would have failed.

4. The judge had expressly considered the second defendant’s alleged failures concerning disclosure and pre-action protocols. Those matters therefore did not undermine the costs order. Nor was the claimant’s imprisonment and consequent ability to pay determinative. The relevant question was whether the successful defendant was entitled to an order for costs, and he was.

5. Lord Justice Tomlinson agreed that there was insufficient material to justify overturning the judge’s exercise of discretion, which was based on her detailed knowledge of the claim and the trial.

• Court of Appeal (Civil Division): [2014] EWCA Civ 628 — appeal against the County Court costs order dismissed.
• Leicester County Court: judgment given on 31 August 2012 by HHJ Hampton; the claim against the second defendant was dismissed as totally without merit and indemnity costs were awarded.