B&Q Plc, R. v

We gave judgment on 27 September 2005 (reported at [2005] EWCA Crim 2297), dismissing the appeal on conviction and the amount of the fine imposed; we allowed in part the appeal against the quantum of the order for costs made by the trial judge.

It was not possible to deal with the costs of the appeal at the handing down of the judgment, as insufficient notice was given by the respondent. We directed that written submissions be supplied. We have considered those submissions.

The overall costs of the respondents on the appeal were (in round figures) £10,400 and those of the appellants were (in round figures) £61,000.

It was argued on behalf of the appellants that the proper approach to the assessment of costs of the appeal should be on the basis that the issue on the appeal as to the costs awarded by the trial judge represented one third of the costs of the appeal. Therefore their success on the issue of the costs awarded by the trial judge justified an award that reflected (1) a one third reduction from the amount of the respondent’s costs the appellants would otherwise have to pay and (2) payment to the appellants by the respondent of a third of their costs of the appeal. This would result in a net payment by the respondent to the appellants, even if the costs of the appellants’ solicitors incurred on the appeal were reduced significantly on the assessment, because for the reasons given in paragraph 56 (v) of our judgment, the employment of leading and junior counsel by the appellants was not, in our view, an expense which was not properly incurred.

However, we do not consider that the issue of costs of the appeal should be approached on the basis that one third of the costs should be apportioned to the argument on the issue of the costs awarded by the trial judge. The argument on this issue did not long occupy the time of this court, it plainly did not take long to prepare and the written submissions that were supplied to the court after the hearing of the appeal (see paragraph 54 of the judgment) were within a manageable length.

We accept, however, that the appellants are entitled to some of their costs to reflect their success on the issue of the costs awarded by the trial judge, but costs which would reflect an amount significantly less than one third of the time. We therefore approach the issue of the costs of the appeal on the basis that the appellants were substantially unsuccessful on the appeal. Bearing in mind the sums in issue, we do not consider that it is in the interests of justice to order a detailed assessment of the costs.

Assessing, therefore, the costs of the appeal on the basis of the information before us, we order the appellants to pay £4,000 to the respondent by way of the costs of the appeal. This sum is arrived at by deducting from the amount which the appellants would otherwise have had to pay the respondent for the overall costs of the appeal,