Garrett v Halton Borough Council

This is my judgment in the case of Garrett and Halton Borough Council. The appeal was dismissed by this court on 18 July 2006. Questions of costs were adjourned and the matter comes back before us today. There is a considerable measure of agreement. It is agreed that the appellant should pay the respondent’s costs of the appeal to be subject to detailed assessment on the standard basis if not agreed. There were issues about payment on account but those have now been dealt with by agreement. There was an application by the respondent that the appellant should provide the respondent with information in relation to the ATE insurance but that is no longer pursued. There is an issue before us as to whether interest on the costs that are in due course certified to be payable by the costs judge should run from the date of handing down judgment, namely 18 July 2006 or some later date. Mr White submits that it should be from the date on which judgment was entered rather than from 18 July 2006 but in our view it should be from 18 July. The relevant provision is CPR 44.3(6)(g) which gives this court an untrammelled discretion to award interest on costs, “from or until a certain date including a date before judgment”. We see no reason why interest should not run from 18 July when we gave our decision.

The only other matter that is outstanding is the question of the costs of and incidental to the restoration of the appeal including the costs of today. Mr Morgan submits that the respondent should have its costs on an indemnity basis. He submits first that, although he is not pressing for the provision of the information in relation to the ATE insurer, nevertheless, this was a perfectly reasonable request to make and he has referred us to the decision of Henry v the BBC [2006] 1 All ER 154 at paragraph 23. He submits that the response from the claimant’s solicitors in their letter of 18 September 2006 in which they said:

“We have no reason to believe the insurer has any intention of seeking to avoid meeting the Respondent’s costs”

was an insufficient response to meet the respondent’s reasonable requests, including in particular a request for confirmation as to whether or not the insurer would, subject to its limit of indemnity, meet the costs and what that limit of indemnity was. He also points to the fact that there has been considerable degree of lack of co-operation on the part of the claimants’ solicitors in relation to what had to flow from our decision of 18 July 2006. One example is that despite various requests they refused to say whether or not they agreed that the claimants should pay the costs of the appeal until 6 March 2007. Finally, he makes the point that there has been a failure by the claimants to comply with a number of directions given by this court in relation to today’s hearing.

It seems to us that there is some force in the points made by Mr Morgan but we are not persuaded that they justify making an order that the claimants pay the costs on an indemnity basis. There undoubtedly has been a good deal of lack of co-operation on the part of the claimants’ solicitors and there has been a failure to comply with directions. On the other hand, it is by no means clear that the respondent was entitled to make all the requests that it made and we have reached the conclusion that the respondent is entitled to its costs but it should be on the standard basis. I think that takes care of all the points.