Gardner v Parker

LORD JUSTICE MANCE: The order we will make is that we refuse the application for permission to appeal to the House of Lords made by the appellant. We order the appellant to pay the respondent's costs of the appeal to this court. We order payment out of the joint account of the sum of £120,000 paid in in respect of the costs order below, but we will direct a stay of the order for costs in respect of this appeal and the order for payment out of £120,000 provided an application for permission to appeal to the House of Lords is lodged within 28 days, such stay to continue thereafter if permission to appeal to the House of Lords is given until determination of that appeal or further order and such stay to be conditional upon the sum of £45,000 being paid into court or into an agreed joint account within a period about which we will hear counsel.

As regards the costs of today, subject to anything counsel may wish to say about the provisional indication, it would appear to us that the right order is no order. We will hear you if you have anything to say. We would wish to be informed of the outcome of the assessment of costs which we also order in respect of the costs of the appeal to this court, assuming they are not agreed.

MR CRAMPIN: As far as the period for making the payment of the sum on account of the costs into the joint account, we would submit that that should be linked to the time for launching the petition to the House of Lords; 28 days, I think it is.

MR ADAIR: I am happy with that.

LORD JUSTICE MANCE: Twenty-eight days.

LORD JUSTICE MANCE: I think that there are several lessons probably to be drawn, but we are dealing exclusively with the costs of today which we consider should be dealt with separately. We consider that the costs of today's hearing should be borne by each side. In other words, there will be no order for costs. The reason for that is that each side has been, in part, successful and, in part, unsuccessful.

We have heard suggestions that some fault is to be attributed to one side or the other, but there is a disagreement between junior counsel as to the gist of what was said. It seems to us extremely unsatisfactory to try to resolve that, without the slightest indication on paper that anyone was going to take that sort of point and without any assistance or correspondence at all. If a party was going to suggest that a hearing was unnecessary, that it was willing to forgo an oral hearing and have the matter dealt with on paper, and the other party resisted that, it seems to us that that is a matter which should be documented and recorded in correspondence, if possible (as it would clearly have been). As it seems to us, there has been a large measure of failure to appreciate the common sense of resolving issues such as the present on paper even if they cannot be agreed between the parties. We would endorse the desirability of that course being taken in circumstances such as the present. So, no order as to costs in respect of today.