Radu v Houston & Anor

LORD JUSTICE WALLER: For the reasons given in the judgment handed down this appeal is allowed. The parties have basically agreed upon our order subject only to one aspect, which is the question of costs. There are detailed written submissions in relation to costs. I ruled at the end of the hearing of the appeal that this matter should be dealt with on paper if at all possible and it has been possible to deal with it on paper. I have discussed the question of costs with my Lords, Lord Justice Keene and Lord Justice Carnwath, and our ruling as to costs is as follows.

We are going to order that the appellants pay the costs of the hearing before Master Turner. We do that because the appellants resisted giving any security but have ended up at the end of the day having to give security for £80,000. Thus, as it seems to us, they should pay at least the costs of one hearing and the obvious candidate for that is the hearing before Master Turner.

Equally we take the view that there should never have been an appeal to the Court of Appeal; the attitude of the respondents seeking to keep the default judgment they had obtained, not accepting or even responding to the offer made by the letter of 12 January 2006, all that has contributed to that appeal having to take place and ultimately the appellants were successful on that appeal, and thus it seems to us that the respondents should pay the costs of the appeal.

The most difficult aspect of the costs question relates to the costs before Eady J. On one view, the offer of 12 January should have been accepted and the costs thereafter should be down to the respondents. But it has to be recognised that that offer did not offer to pay the costs before Master Turner which we have now ordered. As regards the issues before Eady J, the appellants did not succeed in getting the order for security knocked out altogether but they should have won before him upon the issue relating to setting aside the default judgment.

Taking account of all the above we think the just order is that the appellants should have half their costs before Eady J. Those costs should include the application to expand the appeal and what has been termed the “barrel hearing”; in other words, there should be no special order in relation to those aspects.

The final matter to deal with relates to the interim payments that have been ordered to be paid, and the right order in their regard is that those interim payments should be paid into court by the respondents, pending any assessment there may be relating to the costs orders made, and any application for release of those sums should be dealt with by a Master.