Tates (Agents) Limited & Anor v Caroline Nicholas & Anor

On an appeal concerning damages and costs, consequential orders should reflect the extent to which the appellant improved his position. A costs offer cannot determine costs where it was conditional on wider terms and did not separately compromise the issue on which the appellant succeeded. Where a party is liable for only one severable claim, liability for costs should be confined accordingly. The court may order a payment on account of costs, but the amount should allow for uncertainty in the detailed assessment and for costs recoverable by the successful appellant.

This was a consequential judgment following a substantive appeal by the second defendant, who succeeded on Grounds 7 and 8. Ground 7 concerned the consideration of unpleaded matters in determining harassment and quantifying damages. The damages were reduced to £15,000, although the wider harassment case remained sufficient to justify an award. Ground 8 concerned the finding that the second defendant was jointly liable for the costs of the entire proceedings, despite not being a party to the claim against the first defendant.

The court determined the consequential issues concerning damages, interest, appeal costs, set-off, and payment on account of costs.

1. Ground 7. The appeal resulted in an amendment, rather than the setting aside, of the damages order. Damages for harassment were reduced to £15,000 and remained payable with interest. The respondent’s without-prejudice offer, although proposing a reduction to that sum, was conditional on wider terms concerning costs and did not separately compromise Ground 7. The appellant had bettered the offer and was entitled to his costs on that ground.
2. Ground 8. Because the second defendant was not a party to the claim against the first defendant, his liability for costs was limited to the harassment claim. He was therefore entitled to his costs of the appeal on Ground 8. Those costs would be set off under Civil Procedure Rules 1998 rule 44.12 against the costs recoverable from him in respect of the harassment claim. Detailed assessment was required unless the costs were agreed.
3. Payment on account. The assessed costs attributed to the harassment claim were stated to be £96,561.77. Since the appeal reduced the amount payable rather than extinguishing the liability, it was appropriate in principle to require payment on account. The court allowed a substantial margin for error, including the appellant’s appeal costs and possible assessment arguments, and ordered payment on account of £40,000 rather than the 80% sought.
4. Adjournment application. Although the respondent sought its costs of the unsuccessful adjournment application, the application concerned case management and genuine medical difficulties. In the circumstances, the appropriate order was no order for costs.

• High Court (King’s Bench Division): Following the substantive appeal, the court reduced harassment damages to £15,000, limited the second defendant’s costs liability to the harassment claim, and determined the consequential costs orders in this judgment.