Phillips v Phillips

In the light of the course taken in this appeal, and the decision on the part of the appellant not to pursue his appeal following our having granted permission to the respondent to amend the Respondent’s Notice in certain respects, we have to consider in somewhat unusual circumstances the question of costs. Mr Hall Taylor for the appellant submits that the appropriate order would be no order for costs, to reflect the fact that the appeal is to be dismissed in the light of points being taken in the amendment to the Respondent’s Notice prompted by words from the bench this morning. He makes the perfectly fair point that those are points that were live, of course, at the trial -- otherwise they could not possibly be taken now – and could have been taken in the original Respondent’s Notice served almost a year ago. He makes the point that there has been no adjudication on the merits of any of the points in the appeal or the Respondent’s Notice, and in those circumstances he submits that the appropriate course would be no order for costs.

Mr Collingwood makes the converse of those same points. He says that there has been no adjudication to the effect that the points already taken in the appeal are good or that those taken in the first two aspects of the Respondent’s Notice are bad, and that he ought to be entitled to his costs of the appeal in the ordinary way.

It appears to us that the right course is neither of those, but perhaps closer to Mr Hall Taylor’s submission than to that of Mr Collingwood. We agree that the points ought to have been taken in the Respondent’s Notice served on 10 March 2008 and that at latest they should have been taken, and if they had been taken in the Respondent’s Notice they would have been amplified and elaborated on, in the first skeleton argument for the respondent which was served in November last year. It is dated 21 November 2008.

Mr Collingwood submits that as a fallback he should have the costs up to and including that skeleton argument, and that he should have at least some proportion of his costs of preparing for and attending today’s hearing. It seems to us that, given that the effect of Mr Phillips’ commendable decision not to pursue the appeal in the light of the course of events today is a substantial saving on all sides including of costs for the respondent, by no means all of which would necessarily have been covered by an order for costs (and who knows whether, even to the extent that they were covered by an order for costs, they would have been effectively recoverable),in those circumstances the order we propose to make is that the appellant do pay to the respondent her costs up to and including the service of the Respondent’s Notice in March 2008, and her costs of preparing and serving the skeleton argument that I have mentioned in November of last year, but not, as Mr Hall Taylor suggested we should not, the intervening costs. We do not know what those were. It was a relatively substantial time. There was a hearing due in December, so there may have been some hearing preparation costs. But it seems to us appropriate to limit the adverse order for costs to those early costs of the appeal, up to and including the Respondent’s Notice, together with such costs as are attributable to the first skeleton argument only.

So we will dismiss the appeal. We will make the order for costs that I have mentioned. Those costs will have to be the subject of detailed assessment unless they can be agreed.