Coope & Ors v Ward & Anor

Where an appeal leaves the successful party with no financial recovery, the court may make a substantial costs adjustment to reflect the practical result and the issues actually contested. Settlement offers are relevant to costs, including whether a party reasonably addressed the opposing party’s costs. The court should also account for the relative time and expense devoted to claims and counterclaims, and may leave the detailed assessment of substantial costs to the costs judge, subject to proportionality.

The Wards claimed an easement of support relating to the Armstead Wall and alleged that the Coopes had interfered with it by removing supporting outbuildings. They failed at trial to establish the easement or interference, but obtained modest relief on the basis that the Coopes owed them a duty of care. The Coopes appealed.

On appeal, the Coopes failed to establish that no duty of care arose, but succeeded in showing that the judge should not have required them to make a financial contribution. The court also considered two further grounds and the parties’ settlement offers. The consequential issues were the costs of the appeal and the first-instance proceedings.

1. Disposition. The court rejected the challenge to the existence of a duty of care, but held that no financial contribution was payable by the Coopes. The Wards therefore recovered nothing of practical value from the claim.

2. The court rejected the argument that the Wards could not claim a contribution because their pleaded claim had sought the whole costs. That ground occupied virtually no time and was rendered moot by the conclusion that no contribution was due.

3. The court also rejected the challenge to dismissal of the counterclaim, which sought an order requiring proper support for 41 Orchard Lane and the Orchard Lane Wall and reinstatement of the Armstead Wall. The counterclaim had occupied negligible time and cost on the appeal.

4. In assessing first-instance costs, the court gave substantial weight to the Wards’ failure on the easement claim, which had occupied most of the five-day trial. The limited time and cost devoted to the counterclaim were also relevant.

5. The parties’ offers were material. The Coopes’ Part 36 offer would have produced an outcome broadly similar to that reached on appeal, while requiring the Wards to bear the Coopes’ costs. The Wards’ later offer did not provide for the Coopes’ costs. It was unreasonable to expect the Coopes to accept that offer in light of the claims they faced. However, the Coopes’ failure to respond to it in a way that might have encouraged settlement justified a costs deduction.

6. The Wards were ordered to pay 85% of the Coopes’ costs of the appeal and 85% of their costs at first instance. The costs were to be assessed on the standard scale. The costs judge was to consider proportionality and all other relevant matters. The Wards were ordered to pay £40,000 on account within 21 days.

• Court of Appeal (Civil Division): The appeal succeeded in relation to the order for a financial contribution. Grounds 2 and 3 were rejected. The Wards were ordered to pay 85% of the Coopes’ costs at first instance and on appeal: [2015] EWCA Civ 283.
• Sheffield County Court: The Wards failed to establish an easement of support or interference with the Armstead Wall, but obtained modest relief based on a duty of care. The citation was not stated in the judgment.