Taylor v Burton & Anor

In an appeal involving discrete issues and different financial orders, success should be assessed issue by issue and by the practical effect of the result. Where both parties achieve material success and it is unrealistic to identify an overall successful party, the honours may be regarded as broadly even, justifying no order as to appeal costs. An unreasonable refusal to mediate is a relevant conduct consideration where the court would otherwise regard that party as the successful party.

This was a costs judgment following the Court of Appeal’s earlier determination of Mr Taylor’s appeal against orders made by His Honour Judge Barham in the Norwich County Court. Ground 1, concerning the extent of a right of way, was resolved by agreement. The earlier appeal dismissed grounds 2 and 7 and allowed grounds 5 and 6: the £500 damages award remained, while liabilities connected with an amendment and an interim injunction were reduced.

The parties disputed the costs of the appeal. Mr Taylor sought all or 80 per cent of his costs. The Burtons sought 75 per cent of theirs, excluding the permission hearing. The central issue was which party had been successful and what costs order should follow.

1. Order. The court made no order as to the costs of the appeal.
2. Assessment of success. The proper starting point was to identify the successful party, but the grounds raised discrete issues requiring separate assessment. Mr Taylor was treated as successful on the property-rights issue in ground 1, which had been resolved consensually in a way essentially favourable to him, subject to a temporary concession for the Burtons.
3. In relation to the money orders, however, Mr Taylor had sought to overturn liabilities totalling approximately £121,000, subject to assessment, and had reduced that liability by no more than about 10 per cent. The Burtons were therefore the successful parties on the money orders. It was unrealistic to identify either party as the overall successful party. Each had achieved a material degree of success, so the honours were broadly even.
4. Conduct. Mr Taylor’s unreasonable refusal to attend a proposed mediation was justified on the evidence. Had he otherwise been regarded as the overall successful party, that conduct would probably have affected the costs order. It did not alter the conclusion that the appropriate order was no order as to costs.
5. The earlier appeal’s disposition was recorded as dismissal of grounds 2 and 7 and allowance of grounds 5 and 6. Ground 1 required no judicial determination because the parties had agreed the terms of a deed of easement. The costs order below remained undisturbed so far as ground 7 was concerned, while the successful grounds reduced the liabilities associated with the amendment and interim injunction.

• Court of Appeal (Civil Division): In the earlier judgment, the appeal was dismissed on grounds 2 and 7 and allowed on grounds 5 and 6; ground 1 was resolved by agreement. The costs judgment reported here made no order as to the costs of the appeal: [2014] EWCA Civ 63. The earlier judgment was reported at [2014] EWCA Civ 0294.
• Norwich County Court: His Honour Judge Barham made the orders challenged on appeal, including a £500 damages award, a costs order, and orders relating to an amendment and an interim injunction. The lower-court citation was not stated in the judgment.