Zohra Khan v Tariq Mehmood

Where an issue was not argued on appeal, the appellate court may leave the first-instance ruling on that issue unaltered when making a consequential order. Appellate costs may be apportioned by reference to success on each issue, financial importance, hearing time, conduct and settlement offers, including offers not made under Part 36. Success on the principal issue may justify recovery of most, but not all, costs where a subsidiary issue occupied more hearing time.

The proceedings concerned damages for breach of an implied term to keep a property in repair. On 21 June 2022, the Court of Appeal allowed ground one of a second appeal concerning damages awarded for a period before the tenancy commenced, but refused ground two concerning a 10% increase applying Simmons v Castle.

The parties then disagreed about the commencement date for damages and the costs of the first and second appeals. This supplemental judgment determined those consequential issues.

1. The Court of Appeal had allowed the appeal on ground one and refused it on ground two. The supplemental judgment addressed the resulting commencement date and costs orders.

2. Although the earlier judgment referred to damages being payable from 23 March 2011, the issue of the two-month grace period had not been argued before the Court. The district judge’s ruling on that issue should therefore remain unaltered. The damages were ordered to commence on 23 May 2011.

3. Costs were assessed by reference to the parties’ success on the separate issues, their relative financial importance, the hearing time devoted to each issue, the parties’ conduct and the settlement offers made. Ground one concerned the duration of damages and was financially substantial. Ground two occupied more hearing time but was subsidiary in financial terms.

4. The appellant had made concerted efforts to settle by abandoning the Simmons v Castle issue. Although the offers were not made under Part 36, the Court took them into account and found that the appellant had beaten the offer made on 3 March 2022. The appellant was awarded 50% of her costs of the first appeal and 80% of her costs of the appeal to the Court of Appeal.

5. A consequential order was approved in those terms.

• Court of Appeal (Civil Division): On the second appeal, the Court allowed ground one and refused ground two. This supplemental judgment fixed the damages commencement date and apportioned the costs of the first and second appeals.
• County Court at Willesden: A district judge awarded damages for disrepair. The award was considered on a first appeal to a circuit judge before the matter reached the Court of Appeal.