Dickinson & Ors v Tesco Plc & Ors

This is the judgment of the court. The principal judgments on the appeal were handed down on 4 February 2013: see [2013] EWCA 36. We will use the same abbreviations that we used in the main judgments. The issue of costs remained contentious. The parties were ordered to provide short written submissions on costs. The submissions were indeed short but the accompanying material voluminous.

Effectively, the opposing parties for the purposes of costs are AEL and AXA. On 12 February 2013 AEL has lodged a written application to be added as a party for the purposes of costs, pursuant to CPR Pt 48.2, so that a costs order can be made in its favour. AXA has consented to this order. We agree to it.

We can briefly summarise the rival contentions on costs as follows: AEL submits that it won the appeal and so should have its costs. Moreover, it submits, it made reasonable attempts to settle all the cases but AXA would not listen or make any reasonable offer to settle matters overall or in relation to these cases.

AXA submits that the “key” issues for it on the appeals was the question of whether (as AEL had submitted on the appeal) AXA was to be debarred from contesting any retrials or from having the opportunity on any retrials to adduce further evidence on the issue of hire rates. AXA won on those points. AXA also submits that it made an offer to mediate all the cases in June 2012 but that offer was rejected unreasonably. Further, AEL has been unreasonable in its demands for an overall settlement figure. It is said that AEL could have dealt with all these issues much earlier than it did, but was insistent on going over old ground.

In our judgment the starting point must be that AEL has been successful in its arguments to adduce the fresh evidence and in obtaining permission to appeal out of time and in achieving its main goal of an order for a retrial in all four cases. We recognise that there has been some intransigence, but this has been on both sides and we are not prepared to try and measure minutely which side has been more intransigent than the other. We only note four factors in particular. First, the fact that AEL had to seek an extension of time in all cases and, as we noted in the main judgment, there were serious issues to consider about delay. Secondly, it seems to us that AEL placed too much emphasis on their belief that AXA and its solicitors, Morgan Cole, were somehow mixed up with Autofocus, points which we refused to consider at the appeal hearing and were dropped by Mr Edis QC. Thirdly, in our view, (although we accept that we have not seen specific evidence on this), Mr Evans of AEL was being unreasonably optimistic in initially seeking an overall settlement of £1.6 million plus costs at that stage, although the figure was reduced subsequently in negotiations. Fourthly, AXA could reasonably have conceded the issues of an extension of time and permission to appeal and fought the appeal on the issue of whether the fresh evidence could be adduced and whether they should be allowed to contest any retrials or any limitations on the evidence that AXA could adduce at any retrials. In the end AXA fought on all issues and only won on the issues of whether they could contest any retrials and, if so, what form the retrials should take, neither of which took up much time at the hearing.

Our conclusions are as follows: first, all questions of costs on the retrials themselves must be dealt with by the judge who conducts those retrials. Secondly, bearing in mind the points we have mentioned above, AEL should have 70% of its costs of the appeals. AEL’s costs will be subject to a detailed assessment on the standard basis if they cannot be agreed.

The parties are to draw up a draft order on costs to reflect this judgment.

It has been drawn to our attention that there is a discrepancy in the terms of paragraphs 108 and 111 of the principal judgment and the principal order of the court which may have led to difficulties in relation to other cases where there is to be a retrial in the County Court as a result of our judgment in these four cases. At paragraph 108 of the principal judgment, Aikens LJ said:

“Mr Wilkinson (counsel for the respondents) accepted that if the appeals were to be allowed then in all four cases there should be retrials of the issue of the recoverable hire rate.”

In paragraph 111, Aikens LJ said:

“In all four cases I would allow the appeals and order retrials in the terms that (a) the retrial in each case is limited to the issue of the quantum of the car hire recoverable….”

The second formulation is the one reflected in the court’s order. We understand that this has led to arguments in other cases that this court intended that, on a retrial, the parties could reargue other issues such as the need for a hire car and the length of the hire period. This is an error. This court was anxious to ensure that any other issues which are not affected by the Autofocus evidence, such as the need for a car and the length of the hire period should not be reopened on any retrial. Accordingly, we will direct that the order of the court be amended pursuant to CPR Part 40.12(1) in terms that we hope will make it clear that no other issues other than the rate of hire can be reopened at any retrial.