Taylor v Burton & Anor

This is the judgment of the court.

The court handed down its judgment on this appeal on 23 January 2014 ([2014] EWCA Civ 0294). Following the provision of drafts of the judgment to counsel, the parties reached agreement on all aspects of the order they wished the court to make, save only as regards costs. As to costs, Mr Butler, for Mr Taylor (the appellant), asked us to order the Burtons (the respondents) to pay all Mr Taylor’s costs of the appeal, alternatively 80% of them, the costs in either case to be the subject of a detailed assessment if not agreed. Mr Darbyshire, for the Burtons, asked us to order Mr Taylor to pay 75% of the Burtons’ costs of appeal, save for the costs of the hearing of the permission application before Davis LJ on 15 November 2012, as to which there should be no order.

Given the gulf of the disagreement between the parties, the court concluded that it ought to give short reasons for deciding, as it does, that the appropriate order to make is no order as to the costs of the appeal. These are those reasons. The background to this appeal is apparent from our judgment of 23 January 2014, which the court will take as read.

Patten LJ, on the papers on 6 July 2012, refused Mr Taylor permission to appeal. His grounds of appeal were then re-formulated in their entirety under seven grounds. He sought permission to appeal on these grounds at the oral hearing before Davis LJ.

Ground 1 sought to put right an apparent mistake in the order made by His Honour Judge Barham, which found its way into the order despite the fact that the judge was addressed on it at the hearing before him on 12 January 2013. The mistake was materially adverse to Mr Taylor, who was justified in seeking by ground 1 to have it corrected. Counsel agreed at the hearing before Davis LJ that there was a mistake in the order, Davis LJ concluded that the mistake either had been or would be corrected by agreement, and he disposed of ground 1 on that basis.

Rimer LJ explained in [2], [3], [4], [16] and [17] of our earlier judgment the position in relation to ground 1, and that in the event it had not been so disposed of by the time the appeal came on before us; and he expressed the hope and expectation that the parties would be able to reach agreement as to the disposal of the problem that led to ground 1 of the appeal. The parties have been able to reach agreement on that, by agreeing the terms of a deed of easement that will be executed. The court has not, therefore, had to make a decision on ground 1. Had it been required to do so, it appeared to the court that it would have been faced with a difficult task in deciding the precise area of the servient land that the judge had intended to identify in his declaration as to the Burtons’ right of way, and that the court might have had to remit the matter to the judge for him to provide the required clarification.

As for the other six grounds of appeal, Davis LJ gave Mr Taylor permission to appeal on grounds 2, 5, 6 and 7. The outcome of the appeal was that the court dismissed the appeal on grounds 2 and 7, but allowed it on grounds 5 and 6.

Success by Mr Taylor on ground 2 would have resulted in the discharge of a £500 damages award that the judge made against him. That award, however, remains undisturbed. Total success by Mr Taylor on ground 7 would have resulted in the discharge of the judge’s order that he should pay the Burtons’ costs of the claim. We are told that the costs total £120,509.80, but that there will fall to be deducted from that figure the costs referable to the interim injunction (the subject of ground 6) and also, we presume, the costs of the amendment (the subject of ground 5), and the costs still remain to be assessed. A more limited success on ground 7 might have resulted in this court leaving Mr Taylor having to meet only a proportion of the Burtons’ costs.

Mr Taylor’s success on ground 5 means that he is relieved of the burden of a small liability in respect of the costs of an amendment that the Burtons made to their particulars of claim, which we are told is unlikely to be more than a few hundred pounds. His success on ground 6 means, we are told, that he is relieved of a liability of £11,188.80 of the Burtons’ costs (part of the £120,509.80 figure referred to in [8]).

In considering what order to make as to the costs of the appeal, the first question that we should attempt to answer is ‘who was the successful party in the appeal’. We do not find the answer easy. The five grounds of appeal which remained live after the hearing before Davis LJ each raised discrete points. Ground 1 raised an important point as to Mr Taylor’s property rights, an issue which had not been resolved at the time of the hearing before us, but which was then consensually resolved in a way essentially favourable to Mr Taylor, although its resolution also included a temporary concession in favour of the Burtons. We would, however, regard Mr Taylor as the successful party as regards that issue. By the other four grounds Mr Taylor sought to overturn in their entirety costs and money judgments against him that totalled (subject, as to costs, to a detailed assessment) approximately £121,000, whereas the outcome was that he succeeded in reducing that liability by no more than 10% of it. That suggests to us that the Burtons were the successful parties in respect of the money orders that were the subject of Mr Taylor’s appeal.

Both sides can therefore claim to have achieved a material degree of success in the appeal. We regard it as unrealistic to identify who, between them, was overall the successful party. The reality in our view is that the outcome of the appeal is that the honours were broadly even. That points in our view to making no order as to costs. Mr Darbyshire made the point that Mr Taylor had unreasonably refused to attend a proposed mediation last year, an assertion that we regard as justified. Had we been disposed to regard Mr Taylor as the overall successful party in whose favour an order for costs ought in principle to be made, we would probably have taken that into account in considering what, if any, costs order to make. In the result, however, we propose simply to make no order as to the costs of the appeal.