Hunt v Withinshaw & Anor

Costs ordinarily follow the event, but the basis of assessment must reflect the conduct and circumstances of each matter. Indemnity costs require unreasonable conduct out of the norm; an arguable underlying point and conduct which does not merit indemnity costs may justify the standard basis. A payment on account may be ordered despite an inability to pay or a possible appeal, although sufficient information is needed to assess an appropriate amount. The court may make consequential orders to align the Land Registry with its judgment where the position has been determined and doing so is overwhelmingly convenient. Permission to appeal requires a real prospect of success or another compelling reason.

The judgment dealt with consequential matters following the court’s earlier judgment in the proceedings, including costs of applications and an appeal, the basis and amount of costs, the Land Registry position, permission to appeal, and the time for appealing. The central issues were whether indemnity costs were justified, whether a payment on account should be ordered, whether consequential registration orders should be made, and whether permission to appeal should be granted.

1. Costs. Mr Hunt was ordered to pay Mr Withinshaw’s and Conwy’s costs of the application of 9 October 2015 and of the appeal against the order of 13 January 2014. He was also ordered to pay Conwy’s costs of the vesting-order application insofar as those costs were not already covered by an order.
2. The application of 9 October 2015 had been hopeless, totally without merit, an abuse of process and pointless. Its conduct was unreasonable out of the norm and would ordinarily justify indemnity costs. However, separating those costs from the remainder would create practical difficulty, so all Conwy’s costs were ordered to be assessed on the standard basis. Conwy’s costs were to be subject to detailed assessment if not agreed.
3. The appeal against the order of 13 January 2014 involved an arguable underlying point deserving permission, although lateness remained an issue. Mr Hunt’s conduct after Conwy joined the appeal did not merit indemnity costs. Mr Withinshaw’s costs were summarily assessed at £26,333.62.
4. A payment on account of costs may properly be ordered despite a possible inability to pay or a possible appeal. No substantial payment was ordered immediately because Conwy had not provided sufficiently detailed information. Conwy was given permission to apply on paper, supported by a summary of the costs claimed.
5. The court ordered steps to bring the registered title into line with the conclusions of the earlier judgment. Although such an order would not normally be necessary, it was overwhelmingly convenient because the registered-title issue had been raised for determination and a related objection was pending before the Property Chamber Land Registration First-tier Tribunal.
6. Permission to appeal was refused. The proposed grounds had no real prospect of success, there was no basis for allegations of actual bias or misconduct, and there was no other compelling reason. Assuming in Mr Hunt’s favour that the proposed appeal was not a second appeal for the purposes of CPR 52.13, permission was still refused. The time for lodging an appellant’s notice was extended to 21 days from the judgment. The order concerning the registered title was stayed pending any application to the Court of Appeal for permission to appeal, with Conwy permitted to apply to lift the stay.

The judgment followed the court’s earlier judgment handed down on 27 October 2015, reported as [2015] EWHC 3072 (Ch). It determined consequential matters arising from that judgment, including the costs of an appeal against an order dated 13 January 2014. Permission to appeal against the present orders was refused, subject to any application to the Court of Appeal.