A3/2004/1257
A3/2004/1257(G)
Neutral Citation Number: [2005] EWCA Civ 791
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE PARK)
Royal Courts of Justice
Strand
London, WC2
Thursday, 23rd June 2005
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE CHADWICK
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(1) INFINITELAND LIMITED
(2) JOHN STEWART AVISS
Claimants/Appellants
-v-
(1) ARTISAN CONTRACTING LIMITED
(2) ARTISAN (UK) LIMITED
Defendants/Respondents
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MR PAUL DOWNES (instructed by Messrs Bircham Dyson Bell, London SW1H 0BL) appeared on behalf of the Applicants
MR ROBIN HOLLINGTON QCand MR ROBERT LEVY (instructed by Messrs Taylor Vinters, Cambridge CB4 4DP) appeared on behalf of the Respondents
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JUDGMENT ON COSTS
1. LORD JUSTICE PILL: Lord Justice Chadwick will give the judgment of the court.
2. LORD JUSTICE CHADWICK: The appeal is dismissed. We refuse permission to appeal to the House of Lords. In those circumstances, we make no order for a stay of enforcement pending any appeal, or petition for permission to appeal, to the House of Lords. However, undertakings not to enforce are offered and, subject to the drafting correction that paragraph (b) should apply to residential property occupied by the second appellant (rather than the first appellant), we accept those undertakings.
3. No order is made on the respondents' application to adduce new evidence; and no order is made in relation to the costs of the respondents' application to adduce new evidence. We are not in a position to determine whether that application would or would not have succeeded had it been pressed. It cannot be an appropriate exercise, when determining what order to make as to costs, to spend time on seeking to determine an issue which does not otherwise need to be determined. So no order under paragraph 4.
4. The appellants are to pay the respondents' costs of this appeal, such costs to be the subject of a detailed assessment if not agreed. We make no order as to indemnity costs and we make no discounted, or issue-based, costs order. In the circumstances that this was a case in which the issues on which the respondents failed are issues which did not arise in the circumstances that they won on the principal issue -- whether there had been a breach of warranty at all -- and in the circumstances that, although this Court overturned the judge's finding of fact that there had been no principal accounts to which the warranties could relate, the argument in relation to the "no principal accounts issue" took no more than five minutes in this court. That does not justify itself a separate issue-based order.
5. It is also material to have in mind, in deciding what overall order to make as to costs, that in a letter of 6th October 2004 the respondents offered, without prejudice save as to costs, to accept payment of a sum of £350,000 in full and final settlement of all outstanding issues between the parties, and inclusive of interest and costs. The appellants did not choose to accept that offer. They were, of course, entitled to continue to pursue their appeal. But if they took that course, then they must be taken to have accepted that in litigation of this kind, it is not unlikely that each side will win on some issues and lose on others. The overall victory goes to the respondents; the appellants had the opportunity of achieving a result which would have been very much more favourable to them, had they chosen to accept the letter of 6th October 2004.
6. So we make an order that the appellants pay the respondents' costs of the appeal on the standard basis. It is accepted that something should be paid by way of costs on account. That leaves the question "what sum". £85,000 was paid into court as security for the respondents' costs of the appeal. We have been shown a schedule of the respondents' costs amounting to £129,000 or thereabouts. In our view a proper sum to order by way of payment on account is rather less than the £85,000 in court. We direct £75,000 of the monies in court be paid to the appellants on account of their costs of the appeal. The balance remains in court as security for their costs following any detailed assessment.
7. Paragraph 6 of the minute of order invites a direction as to interest. That falls away because that applies only to costs on the indemnity basis.
8. So, going through the minute of order. Undertakings are given in the form offered, with the amendment I have indicated. Paragraph 1 and paragraph 2 are to be in the existing form. Paragraph 3 is to omit the third and fourth lines. Paragraph 4: no order as to the costs of the application to adduce new evidence. Paragraph 5: costs on account of the appeal - £75,000, the remainder stays in court. Paragraph 6 goes. Paragraph 7, the first sentence stays. Paragraph 8 goes. Paragraph 9 - permission to appeal to the House of Lords is refused.
ORDER: Counsel to lodge a draft minute of order.
(Order not part of approved judgment)