Henderson v Commissioner of Police for the Metropolis (Costs)

Judgment was handed down in this matter on 28 March 2018 under Neutral Citation Number [2018] EWHC 666 (Admin). The court invited written submissions on costs. The appellant and respondent claimed costs against one another. One matter raised by the respondent was that if costs were awarded in its favour they should include the cost of kennelling the dog Olive over the period between the district judge’s decision and the date of the hearing of the appeal. As a result, we invited further written submissions on this point from both parties.

The court has considered those submissions and now sets out its conclusions on costs. I consider that the respondent should recover the costs of the appeal from the appellant. In my view, the respondent, rather than the appellant, was successful in the appeal. The court recast the single question posed by the district judge into four separate questions. The answer to the first question, relating to who had standing to intervene and contend that the dog was not one to which s.1 of the Act applied, was answered in favour of the respondent. This was the major issue before the court. The answer to the second question was not conclusive either way in this case because it was recognised that in any event there would need to be a further hearing before the district judge. The answer given was a straightforward application of the decision in Webb and in that respect was uncontentious. Insofar as the issue arising from question 2 remained a live one, that was a consequence of the replacement of the original party, Ms Case, by this appellant. It only became clear to the court on the morning of the hearing that there was such a substitution and that the respondent was prepared to proceed on that basis. Moreover, it was the very late submission of evidence by the appellant (referred to at [34] to [36] of the earlier judgment) which will enable the appellant to raise the issue on a further hearing before the district judge. The answers to the third and fourth questions are not in the appellant’s favour.

In the circumstances, my view is that the appellant lost the central point before us, namely, whether the appellant would have standing to argue that the dog was not a pit bull type. There was no challenge to the district judge’s finding that Ms Case could not be regarded as a person for the time being in charge of the dog. In my view, the respondent is to be regarded as the successful party.

As already indicated, I do not regard the fact that the case has been remitted to the district judge as a factor in favour of the appellant. That was going to happen in any event and arises because the court was prepared in the light of a co-operative attitude from the respondent to treat Ms Henderson as the appellant and to consider her late submitted material. All the appellant has won is an opportunity to make submissions to the court below arising from the decision in Webb. This evidence is new evidence and did not form the subject matter of the Case Stated. For all these reasons, I would award costs to the respondent.

I turn then to the issue of kennelling costs. I have had regard to s.51(1) of the Senior Courts Act 1981 and CPR 44.2. I conclude that these costs come within the ambit of the phrase in s.51(1) “the costs of and incidental to all proceedings in…the High Court”. Whilst it is correct that the Dangerous Dogs Act 1991 contains some provisions relating to costs, it seems to me that the costs presently sought arise as a direct result of the appeal by way of Case Stated and that s.51 is appropriate to give the court jurisdiction. I accept the submission that the respondent had no alternative but to incur those costs whilst the appeal ran its course so that kennelling fees can properly be regarded as incidental to these proceedings. The court, of course, has a discretion, but I consider that in the circumstances it is right to exercise that in favour of the respondent, since the appellant must have been aware that pursuing this appeal would cause the respondent to incur kennelling costs.

I do not think it necessary to remit the matter for a detailed assessment. I am minded to make a summary assessment. I would allow the kennelling costs in the full sum claimed, namely, £6,022.50, plus VAT. The sums claimed in respect of work done by counsel appear to me to be proportionate and reasonable, but I would reduce the sum claimed by way of solicitors’ costs to £5,750. The effect of this is to reduce the sum claimed by £1,858. Accordingly, with some very minor rounding down, I would make an order for costs in favour of the respondent in the sum of £16,500.

I agree.