Costello & Anor v Macdonald & Ors

This is the judgment of the Court. It is made after due consideration of all the written submissions we have received.

On 29 July 2011 we allowed the appeal and ordered the respondents to pay Mr and Mrs Costello’s costs of the appeal. We adjourned the cost issues relating to (1) the respondents’ application for permission to cross appeal, (2) the claim, and (3) the counterclaim.

We refused permission to cross-appeal. That was dealt with on the hearing of the appeal, and we heard submissions on behalf of Mr and Mrs Costello on it. The respondents must therefore pay the costs of Mr and Mrs Costello in relation to the application to cross-appeal.

The result of the appeal is that Mr and Mrs Costello successfully defended the claim against them. They were also partly successful on the preliminary issue before the Recorder. He assessed their costs of the preliminary issue which the respondents ought to be pay at £5,000. There is no reason to interfere with that ruling and assessment. In addition, the respondents should pay the other costs of Mr and Mrs Costello in defending the claim, other than the balance of their costs on the preliminary issue.

There should be no order for costs in favour of Mr and Mrs Costello on the counterclaim since the counterclaim was for damages for breach of contract and that was properly an issue only between the parties to the contract, namely the respondents and Oakwood.

The Recorder ordered Oakwood to pay the respondents’ costs of the claim and the counterclaim. The success of Mr and Mrs Costello on the appeal has no impact on Oakwood’s liability. Oakwood was refused permission to appeal. There is, therefore, no basis for altering the Recorder’s order that Oakwood pay the respondents’ costs of the claim (other than those attributable to the claim against Mr and Mrs Costello) and counterclaim.

All those awards of costs are to be assessed on the standard basis, if not agreed. In the light of the successful appeal, we do not consider it is appropriate that any of the costs below should be assessed on an indemnity basis. Further, in the light of all the circumstances, including the fact that the respondents are partly entitled to costs and are partly liable for costs and that we made no order for payment on account of the costs of the appeal, we do not consider that there should be any order for payment on account of the costs incurred below.