Henderson v Commissioner of Police for the Metropolis (Costs)

In assessing costs after an appeal, the court identifies the party who succeeded on the central issue, rather than treating a remittal or a limited procedural opportunity as success overall. Costs incurred by a party during an appeal may be recoverable where they are a direct and necessary consequence of the proceedings and therefore costs incidental to proceedings in the High Court under Senior Courts Act 1981, section 51(1). The court retains a discretion whether to award such costs. Where the claimant or appellant knew that pursuing the appeal would cause the opposing party to incur necessary expenditure, that expenditure may properly be included in the costs order.

Following the court’s substantive judgment on 28 March 2018, reported at [2018] EWHC 666 (Admin), the parties made written submissions on costs. The appeal concerned the application of section 1 of the Dangerous Dogs Act 1991 to a dog and the appellant’s standing to contend that the dog was not a pit bull type.

The court had remitted matters to the district judge, but considered that the respondent had succeeded on the central issue. A further issue concerned whether the respondent could recover kennelling costs incurred while the appeal was pending.

1. The respondent was the successful party and was entitled to its costs of the appeal. The central issue was whether the appellant had standing to argue that the dog was not a pit bull type and therefore outside section 1 of the Dangerous Dogs Act 1991. That issue was decided in the respondent’s favour.

2. The remittal to the district judge did not make the appellant successful. It would have occurred in any event, and the appellant had gained only an opportunity to make further submissions based on the decision in Webb and newly submitted evidence. The court also noted that the issue concerning the replacement of the original party arose because of the appellant’s late evidence and the respondent’s willingness to proceed on the substituted basis.

3. Applying the decision in Webb to the second question was straightforward and uncontentious. The remaining answers were not in the appellant’s favour.

4. Under section 51(1) of the Senior Courts Act 1981 and rule 44.2 of the Civil Procedure Rules 1998, kennelling fees incurred during the appeal fell within the costs of and incidental to proceedings in the High Court. The respondent had no reasonable alternative but to incur them while the appeal continued. The court exercised its discretion to allow them because the appellant should have appreciated that pursuing the appeal would cause that expenditure.

5. The court made a summary assessment. It allowed kennelling costs of £6,022.50 plus VAT, reduced the solicitors’ costs to £5,750, and ordered the appellant to pay the respondent £16,500 in costs.

• High Court (Administrative Court) — In [2018] EWHC 666 (Admin), the court determined the substantive appeal and remitted matters to the district judge.
• High Court (Administrative Court) — In the present costs judgment, the court held that the respondent had succeeded on the central issue and ordered the appellant to pay £16,500.