Davies & Anor v Bramwell & Ors

MR JUSTICE LLOYD: This is the oral renewal of an application for permission to appeal in a boundary dispute tried by His Honour Judge Graham Jones in the Swansea County Court. I refused permission on paper on three points. I was not in a position to deal with the fourth point, which relates to costs, at that time. By the time I was in a position to deal with it, a request had been made for the oral renewal in relation to the other points and I directed that the question of costs be adjourned to the oral hearing.

Mr Warner, having considered the terms of my written refusal, has refined his application on instructions, in a constructive and sensible manner. He does not seek to challenge my refusal on two of the four points, so that there are now two points at issue. The first is a question relating to what was called "the blue land", as to whether, as the judge held, the defendants were entitled to rights of way over land of the first claimant, by virtue of the circumstances of a conveyance made in 1976.

I need say no more about that than that, on the consideration of Mr Warner's further written submissions, pursuant to paragraph 4. 14A of the practice direction, I am satisfied that there are reasonable prospects of success on the appeal on that point. I therefore propose to grant permission to appeal on that point.

So far as costs are concerned, which is the point I did not deal with on paper, I now have the transcript of the judge's judgment on costs. This was an acrimonious dispute in which a fairly large number of issues, some more important than others and some much less important than others, were ventilated in the course of the proceedings. The judge had to consider the question of costs in relation to, first of all, the fact that there were two separate claimants, one Mrs Davies and the other a company, Onsite Concrete Ltd, with different fortunes in the litigation. Onsite Concrete won the issue concerning what was called the yellow land, but came off less well on other issues relating to the eastern boundary. The first claimant did less well altogether.

This question has to be considered irrespective of the fate of the appeal in relation to the blue land. If the appeal in relation to the blue land were successful, then at least certain aspects of the judge's order for costs would have to be reopened and reconsidered anyway. The question is whether the order for costs should be open to challenge in the Court of Appeal even if the appeal on the blue land fails. Since the appeal on the blue land relates to the first claimant, the costs appeal is significant in any event because it would be the only appeal for the benefit of the second claimant.

What Mr Warner identifies as a major point, on which he would submit that the judge's discretion was exercised in a manner that was wrong in principle, is his unwillingness to make a difference between the two claimants. He dealt with this at paragraphs 9 onwards of his judgment on costs delivered on 16th December 2005. He recorded the submissions either way. Mr Warner did not appear before the judge, I should say, but counsel then appearing for the claimants submitted that the costs order should distinguish between the two claimants and reflect the consideration that the counterclaim against the second claimant in relation to the right of way over the yellow land could not succeed as a matter of law and was dismissed. Conversely, Mr Rhodri Williams, for the defendants, submitted that in reality it was Mr Davies who dealt with all the issues on behalf of both claimants.

The judge then reviewed the history of the matter and referred to a number of the detailed issues. He dealt with a point about mediation. Then at paragraph 18 he said he had considered carefully whether he should attempt to distinguish between the claimants in relation to costs:

The judge went on in that vein, and said, for example, that:

It did strike me on reading the papers that Mr Warner might have a point in saying that that was an inappropriate approach to the costs of this dispute. But on reflection it seems to me that it would be unrealistic to say that there was any prospect of persuading the Court of Appeal that the judge went wrong in principle in the exercise of his discretion on the question of costs in that respect. Accordingly, I propose to refuse permission to appeal. It seems to me that that was a matter which the trial judge was particularly well placed to assess, having seen the parties and seen how the matter was dealt with. Although it is perhaps striking to find that a successful claimant on, for example, the yellow land issue has to pay the unsuccessful defendant's costs, I am not persuaded that there is any real prospect of the court agreeing that that was not a proper exercise of the judge's wide discretion as to costs.

Accordingly, I propose to grant permission on one point and one point only, namely the issues relating to the blue land.

There are before the court several other applications. The first is an application to adduce further evidence, namely the original plan to the conveyance of 3rd September 1976. The circumstances in this respect are somewhat strange. The judge had before him a made-up copy of that conveyance, based on drafts. The defendant's expert had a copy of the original plan to the conveyance, but that was never seen by the trial judge or, for that matter, as I understand it, by the claimants' representatives. That plan is in some respects different from the plan from which the judge was working. It may be that the differences are not significant for the purposes of the issues affecting the blue land, but it did seem to me that there was some virtue in Mr Warner's submission that that ought to be before the court. I do not propose to make an order to the effect that the appellant is permitted to adduce that plan. I propose to adjourn that to the hearing of the appeal. However what I would say is that it seems to me sensible that it should be before the court. I would hope that the respondents will consider whether they should agree to it being put before the court, so as to eliminate one ancillary matter from the matters that will be in dispute on the appeal and in particular to allow the bundles for the appeal to be prepared in an agreed manner, including that plan. Of course I know not what, if anything, the respondents may wish to say in relation to the plan, or in relation to the application. But I would hope that that can be dealt with by agreement and well in advance of the hearing of the appeal.

I shall have something to say about the bundles for the appeal in a moment, but there are two other matters I need to deal with. One is an application to amend the notice of appeal as set out in a draft notice. That was intended to cut down the grounds of appeal to the matters that will be in issue. It will be necessary to cut them down further by reason of my refusal of permission to appeal on costs, but I am all in favour of what lies behind that application, namely the proposition that the papers for the appeal should be limited to those that are relevant to the issue that will be open on the appeal.

Lastly, there is an application for a stay of execution in relation to the costs order. I have not heard submissions on that yet, and I will hear those submissions now.

MR JUSTICE LLOYD: I am asked to stay the costs order below, which was for an interim payment of £10,000 by the claimants, both of them, to the defendants on account of costs which should have been paid by 6th January, but have not been, not least as I understand it because the order, though dated 16th December 2005, still has not been finally sealed. The other order in respect of costs was for the claimants to pay various costs of the defendants, 70% of the costs up to 6th September 2004 on the standard basis and the entire costs thereafter on the indemnity basis, that being because of the refusal to accept an offer, such costs to be the subject of detailed assessment if not agreed.

What Mr Warner invites me to do is to stay both of those orders, although the second claimant will not be mounting an appeal to this court and therefore, even if the blue land appeal were to succeed, it is likely that certainly the second claimant and probably also the first claimant would end up having to pay some costs in respect of the trial. I should say that there is evidence which meets the requirement that the applicant should show that there is reason to suspect that if the costs were paid over and ordered to be repaid, they might not recover them.

In those circumstances, the order I propose to make is to order a stay of paragraph 5 of the order which provides for the interim payment, but on condition that the sum of £10,000 is paid into a separate interest-bearing account in the name of the solicitors on both sides to await the outcome of the appeal. Of course the solicitors for the respondents are unaware of that and if for any reason they are slow or unwilling to co-operate, then the sum is to be paid immediately into a separate account in the name of the appellants' solicitors, to await the outcome of the appeal. I am not minded to stay the detailed assessment of the balance of the costs, because there is bound to have to be a detailed assessment. It may be that the order for costs will change, and no doubt it will change if the blue land appeal is successful. But one or both of the claimants will certainly have to pay some of the defendants' costs and it seems to me that it would be wrong to stay the assessment process, although it may be that the sensible course is for that assessment process not to be regarded as the highest of priorities.

So I will refuse the application for a stay of the detailed assessment. I grant a stay of the interim payment order on condition, as I say, that the £10,000 be paid into a solicitors' interest-bearing account to await the outcome of the appeal, or of course further order in the meantime.