Roadrunner Properties Ltd & Anor v Dean & Anor

J U D G M E N T

Wednesday, 17th March 2004

1. LORD JUSTICE CHADWICK: On 21st November 2003 this court (Sedley LJ and I) gave judgment on an appeal in proceedings brought by Roadrunner Properties Limited against Mr John Dean and Suffolk and Essex Joinery Limited. The proceedings were brought in respect of damage suffered to property owned by Roadrunner Properties Limited by work carried out on a party wall by the neighbouring owner, Mr Dean, and his contractors, Suffolk and Essex Joinery. We allowed the appeal; set aside the order below; and ordered that judgment be entered for the claimant company in the sum of £1,740 and that the defendants should pay the claimant's costs in this court and below.

2. Following judgment it appears that the court associate invited the respondent's counsel, Mr Sachdeva, to provide the court with an agreed form of order to give effect to the court's decision. By an e-mail dated 26th November 2003 Mr Sachdeva sent to Mr Steynor, counsel for the appellant, a message in the following terms:

"The associate asked me to draft the order - the only items I can see are - appeal allowed; judgment in favour of the appellant for £1740; and the respondent to pay the appellant's costs of the trial and of the appeal on the standard basis to be assessed if not agreed."

The reply to that message was an e-mail from Mr Steynor's clerk dated 27th November 2003:

"Mr Steynor apologises for the delay in responding, he has been in trial in Coventry and has had difficulty picking up e-mails.

I have read the contents to him and he is agrees [sic]."

3. On the basis of that exchange the order of this court was drawn in the following terms:

"1) that the appeal be allowed and that the order of His Honour Judge Cox dated 25th October 2002 be set aside

2) that there be judgment in favour of the Claimant/Appellant in the sum of £1740

3) that the Defendants/Respondents to pay the Claimant/Appellant's costs of the trial and of the appeal on the standard basis to be assessed if not agreed"

That order was sealed on 2nd December 2003.

4. The application now made on behalf of the appellant purports to be an application to amend that order under CPR 40.2 (sic). It said that the order fails to give effect to the intention of the court in a number of respects. In a note prepared for this hearing, which is dated 15th March 2004 and appears under Mr Steynor's name, it is said: "Neither party was asked to confirm the terms of the Order before it was sealed". In the circumstances that I have set out, that statement is plainly incorrect. Mr Steynor has not been able to explain how it came to be made; save to say that he had forgotten the agreement that was made with Mr Sachdeva as to the terms of the order.

5. CPR 40.2 is not, of course, in point. The relevant rule is CPR 40.12, commonly known as the "slip" rule. That rule is in these terms:

"(1) The court may at any time correct an accidental slip or omission in a judgment or order.

(2) A party may apply for a correction without notice."

6. The scope of the power conferred by that rule was considered by this court in Bristol-Myers Squibb v Baker Norton Pharmaceuticals Inc & another [2001] EWCA Civ 414; a judgment dated 28th March 2001 which, so far as I am aware, remains unreported. In that case the court made it clear that it was not open to a court under the slip rule to amend an order which gave effect to the intention which it had at the time that the order was made on the ground that, on further consideration after the order was made, the court had had second thoughts.

7. The purpose of CPR 40.12 is to enable the court to amend an order which has been perfected but which fails to give effect to the intention of the court at the time when it was made. Typically, that occurs where there has been some drafting error, or the omission of material words; but it may include a case where the court had intended the order to contain the form of words which it does contain, but had misunderstood the legal effect of that form of words. That is not this case.

8. The amendments which the appellant seeks are these: first, to add to paragraph 2 of the order of 21st November 2003 the words "with interest thereon at the prevailing statutory rate from 19 February 2001 until the date of payment"; and, second, to replace the words which follow the word "costs" in paragraph 3 of the order with the words "in the case and of the appeal including costs of the claimant/appellant company under CPR 48.6 when acting as litigant in person in the case and in the appeal notwithstanding that their solicitors remained on the court record on the standard basis to be assessed if not agreed".

9. The respondents do not agree either of those proposed amendments; although they are prepared to go some way to meet the appellant on the first of them. They are content to agree that the judgment of £1,740 ought to bear interest at a commercial rate from the date of incurring the loss until the date of payment. They point out that there has been no proof to their satisfaction (or that of the court) as to the relevant date of payment; and that the phrase "an appropriate commercial rate" is not necessarily the same rate as the prevailing statutory rate which is what is sought. As to the second of the proposed amendments, the respondents accept that the requirement in the order that they should pay "costs of the trial" is properly to be understood as the costs of and incidental to the trial; that is to say, the whole costs of the action below, save insofar as those costs are already the subject of specific costs orders.

10. In my view, this application is wholly misconceived. First, the court was not asked on 21st November 2003 to make any order for the payment of interest on the award of damages of £1,740; and it did not do so. The court was not asked to determine either (i) whether pre-judgment interest was payable in principle on any part of the sum awarded by way of damages, or if so (ii) at what rate or rates pre-judgment interest would be payable, or (iii) from what date or dates pre-judgment interest would be payable. It is a matter of speculation what order as to interest the court would have made if it had been asked to address those questions. The order as made does not fail to give effect to the court's intention in respect of interest. The court was not asked to, and did not, consider the point. There was no relevant intention to which effect needed to be given by the order. Nor was the point taken (as it could have been) before the order was drawn up in the agreed form.

11. On the second point, the court was not asked to make, and did not make, on 21st November 2003 any order under CPR 48.6. The rule is in these terms, so far as material:

"(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.

...

(6) For the purposes of this rule, a litigant in person includes -

(a) a company or other corporation which is acting without a legal representative."

12. The rule does not envisage that the court will make an order which refers to CPR 48.6. The rule applies where the court has ordered that the costs of A are to be paid by another person, B, and it happens that A is a litigant in person within the meaning of the rule. In such a case CPR 48.6 provides a method by which the litigant in person is to be compensated for his time and expense; thereby giving effect to the provision of the Litigants in Person (Costs and Expenses) Act 1975 which altered the old common law position.

13. In the present case the claimant is a limited company controlled by Mr Neil Morgan. It has acted throughout these proceedings through solicitors on the record, the Adam Cohen Partnership. Those solicitors instructed counsel to appear on the company's behalf on the appeal in this court. In those circumstances this court, in awarding the company as the successful appellant its costs of the appeal, made the usual order for costs to be assessed on the standard basis. Summary assessment was not sought; the appellant not having lodged a schedule in advance upon which such an assessment could be made.

14. At trial, the company having failed in its claim, it had been ordered to pay the defendants' costs. In the circumstances that this court was setting aside the judge's order, it was necessary to deal with the costs of the action as well as with the costs of the appeal. The court heard argument on that point; but was satisfied that, notwithstanding that the amount of damages awarded to the claimant company represented only a small proportion of the amount which had been claimed in the litigation, the company should have all its costs of the action. The court took the view that that was the appropriate order to make in the circumstances that the defendants had failed either to serve a party wall notice before commencing the works complained of or to make a Part 36 payment, or a Part 36 offer, protecting their position. Subject to the narrow question whether an order for the costs of the trial is to mean the costs of the action other than the specific costs already the subject of an earlier order, there is no doubt that the order made and perfected on 3rd December 2003 accurately reflects the court's intention in this regard, and, as I have said, that narrow question raises no dispute.

15. The point is now taken that the company's case was put forward at trial by Mr Neil Morgan, notwithstanding that there were solicitors on the record. The judge at trial was told that solicitors were still acting but that the company had dispensed with the services of its counsel. The solicitors were not there (at the trial) because, as the judge was also told by Mr Morgan, "it was felt there was no necessity for their presence".

16. Notwithstanding that a company with solicitors on the record was seeking to be represented by an individual who had no rights to address the court other than with leave, the judge allowed the trial to proceed on that basis. No doubt he felt that the costs and delay of an adjournment to enable the solicitors to come off the record - or if they remained on the record, for the company to appear by counsel or a solicitor advocate instructed by those solicitors - would be disproportionate.

17. In those circumstances two questions arise: first, whether a company which acts in litigation through solicitors on the record can be said to be "a company acting without a legal representative" so as to be a litigant in person for the purposes of CPR 48.6(6). Second, if not, whether such a company can recover as costs in the litigation any sums in respect of the time and expense which a director has expended in pursuing that litigation, including his appearance as an advocate on the company's behalf at the trial.

18. This is not the occasion to answer those questions. The application before us is an application under the slip rule. There is no doubt in my mind that CPR 40.12 does not enable a party to return to this court after an order has been perfected to raise questions which it did not raise before the order was made. Those questions were not raised at the time. Had they been, I have little doubt that the court would have taken the view that they were properly questions to be answered in the course of an assessment of costs, and were not questions to be answered on this appeal. They can still be raised and answered in the course of the assessment of costs. They are not questions to be raised and answered on this application under CPR 40.12.

19. For those reasons I would dismiss this application.

20. LORD JUSTICE SEDLEY: I agree.

Order: Application under CPR 40.12 dismissed. Applicant to pay the respondents' costs of £933.50, to be set off against any other costs.