Rowland v Environment Agency

LORD JUSTICE PETER GIBSON: We are now asked to determine who should bear the costs of the appeal. It is the respondent's submission that it has succeeded, both in relation to the whole appeal and, if one looks at the matter issue by issue and the two issues which I identified in paragraph 6 of my judgment, it is said by Mr Village QC, for the respondent, that it has succeeded.

Mr Robert Howe, for the appellant, submits that the appellant should be required to pay no more than a small proportion of the respondent's costs, both in this court and in the court below where Lightman J ordered the appellant to pay the costs of the trial. He argues, first, that the respondent greatly increased the costs of the proceedings, both in the preparation and the time taken in court, by adopting a needlessly confrontational approach to the facts and unnecessarily and unreasonably contesting time-consuming and factual issues on which the respondent lost. Second, he argues that the respondent made it necessary for the appellant to pursue her appeal because at first instance the respondent refused to confirm that it would stand by its letter of February 2001, and instead insisted on a declaration in its counterclaim in unqualified and unconditional terms, only finally resiling from that absolute position during submissions before this court.

It is common ground that under CPR 44.3, while there is still the general rule that the unsuccessful party will be ordered to pay the costs of the successful party, the court may make a different order. It has a less fettered discretion and can, in an appropriate case, make orders as to costs reflecting the success or failure of the parties on separate issues and to reflect the conduct of the parties in the litigation. It is unnecessary to refer to the authorities to which our attention has been drawn which make good those propositions.

In my judgment, the general rule should apply in this case. This is a case where before the trial judge, as he indicated in his judgment, by far the greater part of the trial was taken up in argument on the merits of the primary contention of the appellant that section 2 of the 1885 Act operated to extinguish the public rights of navigation over Headsor Water, and that section 5 of that Act authorised the appellant to replace any obstruction to the exercise of such rights.

Although Mr Howe has been able to point to specific matters of fact on which the respondent has lost, in my judgment that submission has to be considered against the background that this was indeed a highly contentious case, argued and fought fiercely, in which numerous points were taken on both sides and the fault in taking unsuccessful points is certainly not always to be found attributable to the respondent. The substantive issues in the case were issues on which the respondent has succeeded. The criticism made by Mr Howe about the respondent not confirming that it would stand by the letter of February 2001 so that the appellant had to appeal is not, in my judgment, entirely correct. We have been shown various statements in the arguments put forward by the respondent which make it clear that it was never resiling from what was proffered in that letter. Indeed, the letter and its contents were criticised by the appellant because of its allegedly inadequate terms.

In my judgment, therefore, having regard to all the circumstances, this is not a case where the respondent has lost on a particular discrete issue, nor has it been shown to have conducted the case unreasonably such as would make appropriate a specific deduction from the costs to reflect such conduct.

I therefore would award the costs of the appeal to the respondent, and I would not interfere with the order for costs made in favour of the respondent by the judge below.

LORD JUSTICE MAY: I agree.

LORD JUSTICE MANCE: I also agree.