London Borough of Hounslow v Devere & Ors (Costs)

Costs of proceedings at different stages should be assessed separately where the issues, relative success and financial significance differ. After an appeal succeeds in part, the court may review and vary the costs order made below so that it reflects the outcome following the appeal. The court should assess the parties’ overall degree of success and failure rather than assume that one party should recover all its costs. A payment on account should be adjusted to reflect the revised percentage liability and any net costs payable in the opposite direction.

The judgment concerned the outstanding costs consequences of proceedings between the London Borough of Hounslow and six defendants concerning alleged trespass and interference with rights relating to land, a walkway and river works. Following a trial in the County Court at Central London, the defendants were ordered to remove their boats and other trespassing items, injunctions were granted, damages were awarded, and the defendants were ordered to pay Hounslow’s costs.

On appeal, the High Court allowed the appeal in part and made less extensive injunctions. It also remitted the question of damages for review. The present judgment determined the costs of the county court proceedings, the appeal, and a separate unsuccessful application for permission to adduce further evidence.

1. Separate assessment of stages. The costs of the county court proceedings and the appeal raised different considerations because the county court dealt with a much wider range of issues and the costs were likely to differ substantially. The court was therefore not required to adopt the parties’ common approach of treating all costs together.
2. County court costs. Because the appeal altered the legal position and produced a better result for the defendants, the original costs order required review. Having regard to the full range of issues determined at trial, the appropriate order was that the defendants pay Hounslow 80% of its county court costs.
3. Appeal costs. The appeal succeeded in part and failed in part. No party should receive all its costs. Assessing the overall degree of success and failure, Hounslow was ordered to pay the defendants 20% of their appeal costs.
4. Other costs and payment on account. Mr DeVere was ordered to pay Hounslow’s costs of his unsuccessful further-evidence application. The payment on account for the county court costs was reduced from £150,000 to £120,000 to reflect the 80% liability, and a further £10,000 was allowed against it for the defendants’ recoverable appeal costs. The net payment on account was therefore £110,000.

1. High Court (Chancery Division): In [2018] EWHC 1447 (Ch), the appeal from the County Court at Central London was allowed in part. The High Court made more limited injunctions, provided for review of damages, and left the outstanding costs issues for later determination.
2. High Court (Chancery Division): The present judgment determined those outstanding costs issues.