Horn & Anor v Phillips & Anor [2003] EWCA Civ 1877

Case No B2/2003/1583

[2003] EWCA Civ 1877

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRIGHTON COUNTY COURT

(MR RECORDER SPON-SMITH)

Venue Royal Courts of Justice

Date Thursday, 18th December 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE BROOKE

Vice President of the Court of Appeal, Civil Division

LORD JUSTICE SEDLEY

LORD JUSTICE JACOB

Between

HORN & ANOTHERRespondent

-v-

Between

PHILLIPS & ANOTHERAppellant

(Computer-Aided Transcript of the Stenograph Notes of

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MR C DARTON (instructed by Paul Davidson Taylor, Horsham) appeared for Appellants

MR P INFIELD (instructed by Edward Harte & Co, Brighton) appeared for Respondents

J U D G M E N T

Thursday, 18th December 2003

LORD JUSTICE JACOB:

This

[1]is an appeal by permission of Schiemann LJ from a decision of Mr Recorder Spon-Smith of 3rd July of this year.

[2]The appellants are Mr and Mrs Phillips, who are the owners of a property called "Ghyll View". The respondents are Mr and Mrs Horn, owners of the adjoining property, "Lane End". Each house has a garden and some land at the back which has been called a paddock. The dispute is over the boundary between the two properties and, in particular, the boundary between the paddocks.

[3]Originally all of the land of both parties formed a single title belonging to a Colonel Hurst. There were then a number of transfers:(1) on 20th June 1997 of Lane End and its garden from Colonel Hurst to the Horns;

(2) a transfer, whose date is unknown, from Colonel Hurst to a company called B&B of land which consisted of or included Ghyll View and both the paddocks, which thus remained in a single title;

(3) 1st September 1998 of the paddock to Lane End from B&B to the Horns;

(4) 30th September 1998 of Ghyll View, its garden and paddock from BMB to the Phillips.

[4]As I have said, the dispute is where the boundary line lies between the respective paddocks.

[5]The recorder held that the boundary between the two properties consists of a straight line extension of the boundary between the houses. The principal issue is: was that right, was it a straight line?

[6]Prior to the commencement of litigation a surveyor had been asked to report, a Mr Leon. He had discovered that some of the maps annexed to these transfers were inaccurate in that they were enlargements of Ordinance Survey maps which were themselves inaccurate. He formed the view that one possibility was that the boundary as shown on one of the transfers indicated that it ran through an oil tank on the side of one of the houses, Ghyll View. Unfortunately, his assistance did not help the parties resolve their dispute, and so the matter worked its way to trial. Mr Leon fell ill and the parties then each engaged independent surveyors.

[7]As I have said, the learned Recorder decided that the straight line was the answer and it is from that that the Phillips appeal. They say that the key transfer is that of 1st September 1998, for it is this which gave title to the Horns. So much is agreed. The question is: what is the effect of that transfer? The Phillips say it is clear; the Horns say not so, that it has an ambiguity. It follows, they say, that evidence is admissible and was correctly admitted by the Recorder.

[8]It emerged eventually that it was common ground that if the evidence was admissible then the Recorder was right, but if it was not admissible he was not. This is because there was no dispute as to the legal principles. I can take them from the judgment of Cumming-Bruce LJ in Scarfe v Adams

[1981] 1 All ER 843

. He said this at page 847:

"And the starting point is that extrinsic evidence is not admissible as an aid to its construction [that is of the transfer] unless the relevant provisions of the deed are uncertain, contradictory or ambiguous."

A little later, on dealing with the particular transfer with which he was concerned, he said this:

"I find its meaning uncertain, contradictory and ambiguous on the definition of boundaries between lots 6 and 5."

In short, he focused on the matter that was said to be relevantly ambiguous.

[9]I turn therefore to the key question: was the transfer of 1st September 1997 ambiguous? It is a short document. It defines the property as "the part of the Vendor's Land edged red on the attached plan having a measurement on the Southern boundary from West to East of 61 meters (sic) or thereabouts". If one goes to the annexed plan one sees the distance indicated with 61 metres, the words "or thereabouts" are not added.

[10]One would have thought that that was pretty clear. The surveying evidence is that there is no doubt as to where the beginning and end of the line are to be found; you can go and find the 61 metres in question. It is said, however, that the plan conveys an ambiguity. That is because the line which constitutes the edge of the paddock that was being bought has something of a continuation going up between the two houses. It is said it follows from that that the intention was that the line edging that which was being bought was to be a continuation, in a straight line, from the line of demarcation between the two properties. It is said: here is a conflict, if you follow that line through and come down to where the end of the paddock is, you find it is not 61 metres, but more. At the trial 69.1 metres was the figure. We have had fresh evidence admitted suggesting it is in fact 72. I do not think it makes any difference which of the two figures it is, and I do not think the fresh evidence assists us to resolve this dispute.

[11]The real question is whether, because of the little line shown between the houses, which is not part of the land which is being transferred, it can fairly be said that this is an ambiguity in this transfer. If the line were not there, there would certainly be none. Does its presence create one? I think not.

[12]This document is intended to transfer title to land. It gives a precise measurement -- I pass over "or thereabouts", which everybody agreed did not make much difference. To my mind the clear intention is to indicate exactly where that line is supposed to be. So relevantly, this map is not ambiguous. True it is that other parts of the map may be not very satisfactory because the Ordinance Survey is not very satisfactory, but in its relevant respect one can see exactly where the beginning and the end of the line is, and if you go to the land you can see exactly where they are.

[13]I would add this. The court of course can admit, and must admit, extrinsic evidence if it finds ambiguity or meaninglessness or the like, but the court should not be astute to go out of its way to find ambiguity or uncertainty where there is none. These documents are intended to affect not only the parties to them, but subsequent purchasers and surrounding land owners. Prima facie they are to be relied upon unless there is something fairly obviously wrong with them. There is nothing fairly obviously wrong with this one. It tells the Horns what they are going to get, 61 metres, and that is what they got. It tells others what the Horns got.

[14]It follows that I think the learned judge was wrong to admit the fresh evidence and I would allow the appeal.

[15]I would only add this, it does not follow that the Phillips are necessarily adjacent to the Horns over the boundary. Whether they got the land up to the boundary depends upon their conveyance, not upon this. But we are not concerned with that. I would allow the appeal.

LORD JUSTICE SEDLEY: I agree.

LORD JUSTICE BROOKE: I also agree. We have already said that the application to adduce new evidence was allowed.

[1]MR DARTON: My Lords, that then leaves the question of costs.

LORD JUSTICE BROOKE: Yes.

[3]MR DARTON: My Lords, I seek the costs of this appeal and of the costs below at trial.

LORD JUSTICE BROOKE: Yes.

[5]MR DARTON: My Lords, there was voluminous correspondence prepared before the learned judge, he referred to it in fact, but perhaps it is best if I wait to hear from my learned friend on that point. I simply seek costs following the event in the usual way on a standard basis, but offers were made on both sides so --

LORD JUSTICE JACOB: So far as this appeal is concerned, although you got your fresh evidence in, I held it did not help, so I am not sure why you should have the costs of that at least.

[7]MR DARTON: My Lords, I am not going to hold out for that. What I was indicating was there is quite extensive correspondence --

LORD JUSTICE BROOKE: Shall we hear Mr Infield about the correspondence and then get back to whether you want a summary assessment of at any rate your costs of the appeal.

[9]MR INFIELD: My Lords, in my submission, I cannot oppose the costs of the appeal.

LORD JUSTICE BROOKE: No.

[11]MR INFIELD: But I can and do oppose the costs of the court below. My Lords, neither side has got what they seek. We now have a paddock delineated as my Lord, Jacob LJ, said, by a line running from point J to the 61 metre mark. Mr and Mrs Phillips may or may not have a piece of land delineated by that means. More probably, in our submission, they have a piece of land delineated by a straight line running from the boundary between the houses straight down. So in other words there is, to adopt, if I may, Jacob LJ's description, a isosceles triangle of land about which we do not know (inaudible).

[12]My Lord, both parties claimed -- perhaps I can show your Lordships what the parties claimed. Can I take your Lordships, first of all, to the prayer in the particulars of claim, which you will find at page 33 of the bundle:

"A declaration that the boundary between the claimant's house and garden and the claimant's land and (b) the defendant's house and garden and the defendant's land runs along a straight line either on the route marked as overlay line or alternatively on the route marked as the intended line on the plan attached hereto"

. I accept that we do not have that. But then one looks at the re-amended defence and counterclaim, the prayer for which you will find at page 40 of your Lordship's bundle. You will see that the counterclaim was "a declaration that the defendants are the freeholder owners of the disputed land between the overlay line and the re-amended Phillips line" -- which, as Mr Darton said this morning, was not ultimately argued for at all at trial on the plan -- "annexed thereto".

LORD JUSTICE BROOKE: What line was that? We had the original Phillips line, whatever that was, on the coloured plan.

[14]MR INFIELD: My Lord, I am not sure, I am afraid, what is -- I think it is meant to be shown on page 41.

LORD JUSTICE BROOKE: That is the trouble with not producing colours.

[16]MR INFIELD: Yes, but I am afraid I do not see any line marked on that, but --

LORD JUSTICE BROOKE: The re-amended Phillips line is said to be marked here.

[18]MR INFIELD: Yes, I am afraid I do not see it, my Lord.

LORD JUSTICE BROOKE: It may have been in the original, but solicitors photocopy and photocopy and photocopy and anything which was useful in the original sometimes disappears.

[20]MR INFIELD: My Lord, I seem to remember a law of documents created by one of your Lordships some time ago which, I think, included such a description of the problem with documents. My Lord, in any event they do not have that, so neither parties have got what they claimed.

LORD JUSTICE BROOKE: You are suggesting we should simply say a plague on both your houses: bear your own costs of the hearing below.

[22]MR INFIELD: If I can borrow from Shakespeare, yes, my Lord.

LORD JUSTICE BROOKE: Yes, Mr Darton.

[24]MR DARTON: If your Lordship is partially persuaded by that, I think it is necessary to look at the part 36 correspondence.

LORD JUSTICE BROOKE: Where do we find that?

[26]MR DARTON: Your Lordship, I have one bundle. This is the bundle referred to by the learned recorder. I think it was going to be prepared for the costs hearing. I think it was held over on the expectation that it would be produced if there were a reserved judgment, but as it is I have one copy, I have a copy myself.

LORD JUSTICE BROOKE: Yes.

[28]MR INFIELD: My Lord, if my learned friend is going to take you through that, then, in my submission, there are a number of difficulties. First of all, your Lordships do not have the correspondence, and it is quite clear -- it is quite a lot, it took the learned recorder, if I remember rightly, going on for half a day to go through the costs arguments, and the file that my learned friend has is a fair chunk of correspondence. The second thing is this. I am not clear whether my learned friend is arguing for a summary assessment of costs. He should be because of the fact that this appeal is -- I am sorry, I have already conceded the appeal, but my point is this: on summary assessment of costs he should have had a bill of costs before your Lordships.

LORD JUSTICE BROOKE: We have one in the Court of Appeal.

[30]MR INFIELD: Your Lordships have the advantage over me because I have not seen that.

LORD JUSTICE BROOKE: We are usually the last to get these, and the last to find them even if we do have them. We have one which was faxed to the court marked "urgent" on 17th December.

[32]MR INFIELD: Your Lordships will have had one from my instructing solicitors.

LORD JUSTICE BROOKE: We have had one from both.

[34]MR INFIELD: I am afraid your Lordships have the advantage of me.

LORD JUSTICE BROOKE: Was it served on your solicitors?

[36]MR INFIELD: Apparently not, my Lord.

LORD JUSTICE BROOKE: That is not much good. Yes, Mr Darton.

[38]MR DARTON: My Lords, if I can deal with the question of the costs of the costs below. Can I indicate this. What you have, in my submission, which I think is clear from the particulars of claim, is almost a sort of originating summons, because if you look at the particulars of claim it says, look, it is either the intended line or it is the overlay line. The fact of the matter was, having seen the experts' reports, that in the course of the litigation both parties attempted to work their way through what I think the learned recorder rightly regarded as a problem they had both been presented with from their conveyancing. It is not, therefore, a case where one can just look at the pleadings in order to determine, as it were, outcome. I have to say that if one were taking an overview on this we, for our own part, would see it difficult to see that we have not, as it were, won, and that if this outcome had been arrived at the trial below we would not have got our costs. What I am contending for is one needs to go through the correspondence in order to make sense of what the parties are trying --

LORD JUSTICE BROOKE: Normally one looks at the pleadings. I remember one produced a let out clause when one pleaded just in case one did not get exactly what one was looking for, so the court could fit it in with what it found, but we do not seem to have got that in your pleadings.

[40]MR DARTON: My Lords, no, but the way the case went along for some time the claimants were not really nailing their colours to the mast as to whether it was an overlay line or an intended line, and when one sees the report from Mr Leon, one can see why. It was only really in the light of the reports of Mr Calvert and Mr Rocks that, as it were, the lines on which the trial was eventually fought became clear. In between that the solicitors were, on both sides, making efforts -- we would obviously wish to suggest that those efforts showed favourably in our favour -- to try and agree on what was clearly a mess.

LORD JUSTICE BROOKE: We are being asked to look at the re-amended counterclaim, page 40 or whatever the number is supposed to be, which was shortly before trial.

[42]MR DARTON: It was, my Lord, yes.

LORD JUSTICE BROOKE: After all these surveyors' reports. Is that what you are asking?

[44]MR DARTON: My Lord, yes. What we had done then is we had accepted, by that point obviously, the intended line through the gardens.

LORD JUSTICE BROOKE: Yes.

[46]MR DARTON: And we were setting out, for the sake of clarity, because whilst it was a late amendment, I have to say that the pleading on the particulars of claim was very, very wide and unspecific indeed, so we clarified our case.

LORD JUSTICE JACOB: Well, you have asked for something called the Phillips line and we do not even know what it is. You did not even get it -- at least I do not think you did.

LORD JUSTICE BROOKE: If we look hard at the colours -- we will certainly be able to know what the original Phillips line was.

[49]MR INFIELD: I am terribly sorry --

LORD JUSTICE BROOKE:

[50]That is 173. That was the original.

[51]MR DARTON: My Lords, yes.

LORD JUSTICE BROOKE: Before it was crossed out on the transfer. That was the 170 feet. That is what you were asking for.

[53]MR DARTON: No, my Lords. With regard to the Phillips line, the reason why it was called "the amended Phillips line" is almost from the outset the Phillips took issue with what Mr Leon had concluded to be their view; in other words, they did not accept that he properly reflected what they said the line was. The re-amended line was intended to reflect the intended line in the paddock, it ran to the 61 metre mark.

[54]MR INFIELD: My Lords, I am sorry to interrupt --

LORD JUSTICE BROOKE: Why do we not call it "the intended line", because you refer to "the intended line" on page 38?

[56]MR DARTON: Because the intended line would run through both properties, if one was being utterly --

LORD JUSTICE BROOKE: I see.

[58]MR INFIELD: My Lords, I am sorry, I had forgotten, and I have just been passed a letter which changes the submission that I made, or should change the submission I made to your Lordships before. My Lord, it is a part 36 offer written on 18th September 2002, and the relevant part --

LORD JUSTICE BROOKE: By who?

[60]MR INFIELD: By my instructing solicitors to those instructing my learned friend. It offers precisely the line, at least as to our boundary, that your Lordships have now decided is appropriate. It says this:

"Alternatively [there were two proposals, this was the second], our clients propose a boundary between the houses as defined by Mr Leon's 'Intended line' as shown between points 'F' and 'J' [that is ultimately what was agreed between the surveyors]. This line may not provide the two metres clearance of the boundary that is significant for Mr and Mrs Phillips' planning permission. This line passes west of the central pillar certainly not less than the current fence line, but the final position to be ascertained by Mr Leon. From point 'J' we offer the line in the field following Mr Leon's 'Overlay Line'."

So that is exactly the line that your Lordships have now found to be our boundary, though what is Mr and Mrs Phillips' boundary is a moot point. My Lord, we say that we have done as well as that ultimately, though I do not resile from the point I made about the costs of the appeal, because we opposed the appeal and have lost, but as to the costs of the trial from 18th September 2002, in our submission we ought to have our costs.

LORD JUSTICE BROOKE: Three weeks after 18th September, or whatever it was?

[62]MR INFIELD: It would be from 21 days after 18th September, my Lord, and it was expressed to be a part 36 offer and to remain open for 21 days, so it implies --

LORD JUSTICE BROOKE: And you can make offers in the alternative, can you, like that?

[64]MR INFIELD: You can, my Lord. The rule does not say you can --

LORD JUSTICE BROOKE: Which rule of part 36 are we looking at?

[66]MR INFIELD: 36.5 would be the rule that your Lordships would need to look at to decide the appropriate form of an offer.

LORD JUSTICE BROOKE: Yes. The consequences of doing as well as the offer are where?

[68]MR INFIELD: 36.21, my Lord.

LORD JUSTICE BROOKE: This is neutral, is it not, 36.21.1? I do not know why it is. If you offer £10,000 and you get £10,000 --

[70]MR INFIELD: My Lord, we would say that what we have is actually now -- what was offered there is more than the Phillips have got, because what the Phillips were being offered was that their boundary would be contiguous with ours, whereas what they now have is not that.

LORD JUSTICE BROOKE: Yes.

[72]MR INFIELD: But I appreciate, my Lord, that it does not actually provide in 36.21.1 for the position where one does as well as --

LORD JUSTICE BROOKE: What do you say that the order should be?

[74]MR INFIELD: The order should be, at the very least, that we should have our costs from 18th September 2002, and that up until that date there should be no order as to costs. The reason I say that, my Lord, is the same reason that I set out before: in effect neither party has got what it set out for up until 18th September 2002.

LORD JUSTICE BROOKE: Yes.

[76]MR INFIELD: My Lord, what you would see -- no, perhaps I better not make that submission because if I do so we will be into the part 36 documentation.

[77]MR DARTON: My Lord, how can we not be in the part 36 documentation because one then has to read the reply to that letter?

LORD JUSTICE BROOKE: What does it say?

[79]MR DARTON: It says as follows: "We refer to previous correspondence in relation to the above matter and the recent offers of settlement, the most recent of which is set out within our letter to you of the 8th October and whilst it appears that we have had no direct response --

LORD JUSTICE BROOKE: You are going much, much too fast. This is supposed to be an appeal we were going to hear immediately after the substantive matter and we do not seem to have been provided with three copies.

[81]MR DARTON: My Lord, I apologise. I will slow down:

"... it appears from the further correspondence that we have received, both on an open and without prejudice basis, from you that the offer of settlement is declined. We believe we have already indicated to you that our Clients are not prepared to meet your Clients' costs of this action and that remains the position. However, our Clients are prepared to offer from the 61 metre point in the southern most boundary a straight line to Point J and then from Point J in a straight line running through the chestnut paling fence to the decorative wall continuing on, along the picket fencing at the front in a straight line to Point F. We suggest that the parties' surveyors attend to agree exactly where this line should fall. This is almost identical to your Clients' proposal no 2 in your letter of the 18th September. The main difference of course is that of costs. Our Clients' proposal is that each side bare their own costs. If costs are the stumbling block for your Clients and they are satisfied with the line agreed upon, then reluctantly our Clients would agree a second option on costs that each party have the opportunity of recovering their costs of the action, all other matters having been agreed, before the Court with an appropriate time estimate."

LORD JUSTICE BROOKE: What does that mean?

LORD JUSTICE SEDLEY: It means that you go before the court and argue about costs and nothing else?

[84]MR DARTON: Yes.

LORD JUSTICE BROOKE: We have ruled that that is not on, a judgment of Chadwick LJ or Mummery LJ about six months ago.

[86]MR DARTON: My Lords, at the time this offer was made, this is 25th October --

LORD JUSTICE JACOB: How do you envisage arguing about the costs? You have to go into the merits to find out about the costs.

LORD JUSTICE BROOKE: That is what Mummery LJ said.

[89]MR DARTON: Yes, my Lord, but I would submit it is analogous to situations where, for instance, the circumstances change, you seek certain relief, and between the date when you started and the date when you get in the course of litigation matters change. Now, what you had here, the offer that was put forward by the claimants was an offer, in effect, which equals what your Lordships have found.

LORD JUSTICE SEDLEY: Anyway, it did not happen.

[91]MR DARTON: It did not happen, my Lord.

LORD JUSTICE SEDLEY: Can you just remind me, I probably missed it in Mr Infield's reading, the letter of offer was conditional upon your paying his costs, was it?

[93]MR DARTON: Yes, it was a part 36 letter, it would be on terms that we pay their costs, yes.

LORD JUSTICE SEDLEY: Is that implicit in all part 36 offers?

[95]MR DARTON: I believe so, my Lord, yes, and if it was not we certainly sought clarification.

LORD JUSTICE SEDLEY: Well, I would be surprised.

LORD JUSTICE BROOKE: I do find great difficulty in adjudicating on this without seeing any correspondence at all and trying to listen to what you are saying quite fast. I really do not have the gist of this correspondence at all. Could we have possibly have at least two copies?

[98]MR DARTON: My Lords, yes.

LORD JUSTICE BROOKE: Can the usher be shown what needs copying.

[100]MR DARTON: My Lord, I am reluctant because I do not know -- if I suggest what I think needs copying to be then told --

LORD JUSTICE BROOKE:

[101]At the moment is sounds as if there is one letter and one counter letter, if we are talking about part 36. We do not look at the whole other correspondence, we just see whether this is an effective part 36 offer or not.

[102]MR DARTON: My Lords, what I propose to do is to take the correspondence from the date of that.

LORD JUSTICE BROOKE: Thank you very much.

[104]MR DARTON: Can I indicate this? The position, it must be borne in mind, with regard to that offer and its terms, for the claimant's perspective, is they have sought either the intended line or the overlay line. The agreement being proposed as to its substance would see a compromise between the two. In those circumstances, one can see the logic of a proposal to say, as indeed was put when the appeal was won, a plague on both your houses, and of course that was the offer made by the defendant, we submit quite genuinely, and given the nature of a boundary dispute, one which this court in a sense, given how the parties have got there, ought to applaud, in other words, we have both (inaudible), it has been a mess, this is something we can live with, but if we are going to live with it, then it has to be on terms that there is no order for costs.

LORD JUSTICE SEDLEY: That I can entirely understand, but I need to be persuaded that the offer that was made by Mr Infield's side implicitly required you to pay their costs by way of acceptance. It may be that Mr Infield thinks it did, but if we look at 36.5.7, it appears that costs are a separate matter. Ordinarily one would expect a part 36 offer to say what disposal it does propose as to costs. It may say "and we will pay your costs", it may say "but in those circumstances we will pay your costs", it may say "you have to pay our costs as part of the deal". If it says nothing, then it may be that, until you have canvassed costs, you can have no deal at all because costs will be hanging in the air, but you responded not by saying "okay so far, now what about costs, let them lie where they fall". You took it that you were being asked to pay their costs.

[106]MR DARTON: My Lords, we did, and for the purposes of the issue before the court, I say if we were wrong in that --

LORD JUSTICE BROOKE: What are the rules, Mr Darton? Where do we find them?

[108]MR DARTON: 36.5 deals with the form and content of part 36 offers.

LORD JUSTICE BROOKE: It is 36.14, is it not: "Where a claimant's part 36 offer is accepted without needing permission of the court, the claimant will be entitled to his costs of the proceedings up to the date on which the defendant serves notice of acceptance".

[110]MR DARTON: Yes.

LORD JUSTICE BROOKE: That is the usual rule.

[112]MR DARTON: Yes.

LORD JUSTICE JACOB: If you had said yes to his offer, you would have been required to pay the costs up to then?

[114]MR DARTON: Yes, and indeed we do not have the previous correspondence, but I think it is pretty plain that was the intention behind the offer.

LORD JUSTICE SEDLEY: So you were working off 36.13, in effect, were you?

[116]MR DARTON: 14, I think.

LORD JUSTICE SEDLEY: Yes.

[118]MR DARTON: As I say, we came back. If the position was we got it wrong, then it would have been a very simple letter to the claimant's solicitors, saying "what are you talking about, we do not want our costs" and we would have had a compromise. We do not get that. We go to trial, we go to trial on an unamended pleading, it is compromised as a result of the surveyors, and the issue that has been before the court was used in a sense to try and bolster the claimant's case, we fight through the case, we get the same result, and at the conclusion of it we are required to pay their costs on a standard basis and then permission is sought to appeal on the basis that we should pay their costs on an indemnity basis.

LORD JUSTICE BROOKE: Let us forget about the appeal. That is just a jury point.

[120]MR DARTON: My Lords, yes. What I am seeking to set out is really this. If you are going to depart from the sort of costs following the event approach --

LORD JUSTICE BROOKE: I am looking at 44.3 at the moment. The general rule is the unsuccessful party will be ordered to pay the costs of the successful party, but in the light of the judgment of this court, who was the successful party in the court below? You did not get what you were asking for, they did not get what they were asking for, a plague on both your houses.

[122]MR DARTON: My Lords, if I can, I would say that does not truly reflect the way I suspect the parties are feeling now. Let us bear this in mind. The proposal was either a line that went through the oil tank, which would have been disastrous for our clients, and indeed there was talk of a planning application referred to in correspondence with regard to a garage and such like, there is no real issue on that, or they had to accept a line that went to a 69.1 metre mark. As it is, they have their 61 metres and they have preserved their oil tank. In practical terms, it is difficult not to feel that they are the victors in this litigation. My own view on it is that the correspondence that your Lordships have before you shows that the defendants made a very proper effort to try and settle a piece of litigation at a stage which would have saved substantial amounts of costs, and the stumbling block to that was that the claimants wanted their costs, and that was an unreasonable thing to do bearing in mind how things had got to that point and also bearing in mind what the line was eventually going to be. No-one is responsible for Mr Leon, and his departure from the case no doubt added to the costs, and all those other matters, but if this court is to encourage settlement, then I would submit that the defendants ought to be credited with that offer. There may be reasons not to give us the entirety of our costs or to run our costs from a certain date, but I do submit, with as much force as I can muster, that really that letter written by those instructing me, albeit that it is wrong on the idea of taking the costs before the judge, really was a genuine attempt to stop two days of trial in the county court and the possibility of an appeal where the whole thing had gone horribly wrong for reasons which neither party were, at the beginning, at fault for. So, my Lords, perhaps fairness would be to run it from that letter.

LORD JUSTICE BROOKE: Now we have the letter, what do you want us to look at?

[124]MR DARTON: My Lords it is page 25, the letter of 11th October. I have set it out. Essentially we agree to the line proposed by the claimants, the line as found by your Lordships, and we suggest there be no order for costs, or, wrongly, that the costs should go before the judge to make a determination of. Essentially I think that offer is almost repeated in open terms --

LORD JUSTICE BROOKE: "If costs are put to one side, i.e. each side bare their own costs, some prospect of settlement can now be reached".

[126]MR DARTON: Yes. We have indicated that we will accept the position and that the surveyors should go on site to peg it. At page 29 of the bundle, on 18th November 2002, we --

LORD JUSTICE BROOKE: This is your offer, is it?

[128]MR DARTON: Yes, this is an open offer, again agreeing the boundary pretty much where it is found to be, each side bear their own costs, and then it sets out reasons why we say the costs order should be appropriate. Then we go on page 31, on 9th December, saying, no -- alleged agreement of January 1999 is a matter of some dispute.

LORD JUSTICE SEDLEY: What is the policy of 36.14? 36.13 lays down the unexceptionable ground rule that if a defendant makes an offer then costs will usually follow up to the point of acceptance of the offer, but that is because implicitly, baring certain circumstances, the defendant has admitted that he was right to be sued. 14 is where it is the claimant who makes the offer. The claimant has started the proceedings, then offers the defendant an out, and if the defendant accepts the out, the defendant pays for the claimant having brought the claim.

[130]MR DARTON: My Lords, I believe the principle is reflected in the fact that certainly there has been a decision of this court saying that if a claimant makes an offer, it has to make a genuine concession, so making an offer saying you will not seek your costs on an indemnity basis is not a proper offer. One assumes from that that the policy consideration behind it is encouraging claimants to accept a little bit less --

LORD JUSTICE BROOKE: A rather great step forward as regards the Woolf reforms.

LORD JUSTICE SEDLEY: So the assumption is that the claimant, by acceptance of something less than he was claiming, was still entitled to something, was therefore still right to sue, and you say that was not this case.

[133]MR DARTON: It was not this case because it is easy to see with regard to money claims how that works. It is much more difficult where you are seeking declaratory relief such as this, because then you are left saying, how much have you actually recovered and who has the better value as a result of the boundary that is declared. Moreover, my Lords, it also is that the offer was made on the basis that their costs be paid, so in a sense it rather depends on the outcome -- whether they did better than that rather depends on the outcome of the trial judge. The trial judge could have said, under 44.3, he could have found in the claimant's favour and said "Look, I am not going to award you your costs because I think a plague on both your houses, I have a discretion and I am not going to exercise it in your favour". It did not offer anything substantively, certainly in terms of the outcome that has been made here, and, as I say, it was in a case where, from the outset, it was always going to be a situation in which the boundary that was found was only going to partly reflect what the claimants had asked for, because they were not clear which was the correct line.

LORD JUSTICE BROOKE: This started in January 2002, well after Woolf came in. What was the state of play, supposing there had been a pre-action protocol for boundary disputes, at the stage when the claimants reckoned that they had got to go to law? Who was offering what on either side?

[135]MR DARTON: I think Mr Leon had reported back. I fear, my Lord, we need to --

LORD JUSTICE BROOKE: Mr Leon reported back before --

[137]MR DARTON: Before proceedings were issued, yes, my Lord.

LORD JUSTICE BROOKE: Mr Leon's solution was what?

[139]MR DARTON: This was the difficulty with Mr Leon's report, he did not really offer a solution, he offered --

LORD JUSTICE BROOKE: Sort of, you just pick and mix depending on what you want.

[141]MR DARTON: Yes. He offered a compromise line, but that was not what he had been instructed to do, and the compromise line is not, of course, the line that has now been found by the courts --

LORD JUSTICE JACOB: What was the compromise line?

LORD JUSTICE BROOKE:

[143]That is greenish, on page 60. Rather sensible compromise line, but you would not have what?

[144]MR DARTON: My Lords, we did not accept the compromise line.

LORD JUSTICE BROOKE: What did you accept, if anything?

[146]MR DARTON: My Lords, I think what we were always proposing was, in effect, the split between H and J and J and F. My Lord, I am informed that at one stage there was a suggestion that the line should pass through the pillar, mid-way between the two houses.

LORD JUSTICE BROOKE: I am only concerned at the moment between the bottom line and J. What were your clients saying about that which led the other side to the issue of proceedings?

[148]MR DARTON: I think we offered 63, my Lords.

LORD JUSTICE BROOKE: At all events, the claimant went to law rather than compromise at 63.

[150]MR INFIELD: (inaudible)

[151]MR DARTON: My Lords, I fear we are going to, just as with the learned recorder, need to plough through the correspondence.

LORD JUSTICE BROOKE: Well, we may have to. Certainly speaking from the top of my head, one would think that one needed to look at the last position of a defendant before the proceedings were brought and then see the effect of all this litigation as compared with the last stance they took before this litigation started, without having to look at umpteen pages of correspondence.

LORD JUSTICE JACOB: It has complications, has it not, because the litigation started with a dispute as to the boundary between the houses as well, which got resolved on the way.

[154]MR DARTON: Yes, yes. My Lords, I am content to have our costs on the standard basis from the date of that offer, which I put before the court as being a genuine attempt in a boundary dispute to try and draw a line --

LORD JUSTICE BROOKE: Both sides bear their own costs up to that date.

[156]MR DARTON: Yes, my Lords.

LORD JUSTICE BROOKE: This is which offer, which date?

[158]MR DARTON: 25th October.

LORD JUSTICE BROOKE: The main difference was the costs of that, and each side bare their own costs.

[160]Yes, Mr Infield.

[161]MR INFIELD: My Lord, that was not what was ultimately agreed. Although it says that the main difference is costs, it is not the only difference. There was a difference, and an important one so far as the parties were concerned, about the boundary between the houses. If I can take your Lordship on page 27 to the fourth paragraph down, second line -- perhaps I better start at the top of that paragraph:

"(unchecked) You have of course now seen our client's expert evidence served last week. This report (inaudible) in proposal 2 almost in its entirety reflects the existing boundary between the parties' properties, except, insofar as the report is concerned, for a small gain to our client taking the boundary from J to the centre point pillar of the dividing wall between the two properties."

LORD JUSTICE BROOKE: What are you reading from now?

[163]MR INFIELD: The letter of 8th October, my Lord, on page 27.

LORD JUSTICE BROOKE: We have been told to look at page 27, letter of 25th October: "Our clients are prepared to offer from the 61 metre point on the southern most boundary a straight line to point J. Our clients propose that each side bear their own costs".

LORD JUSTICE JACOB: Is that not what has happened in the end?

[166]MR INFIELD: Yes, my Lord, but it is exactly that that offer of 25th October is, except for costs, exactly the same as our offer of 18th September.

LORD JUSTICE BROOKE: Yes, but it is very different as to costs.

[168]MR INFIELD: Yes, my Lord, but you have to look at this against the background that we had. Proceedings had been issued on 18th January 2002. By that stage two important things had happened. The first is that we had made an offer on 16th November 2000 in which we offered any straight line through point J, any straight line, they could choose, and your Lordships know that, apart from anything else, because it is actually set out in Mr Leon's report, because he says, and I paraphrase, I cannot draw on my plan at appendix X what the claimants offer because there are so many lines. So my client, in what can only be described as a desperation to settle this case, offered on 16th November 2000 in a part 36 offer any straight line. Mr Leon then comes along --

LORD JUSTICE BROOKE: So it is not a part 36 offer, but an offer which we can take into account.

[170]MR INFIELD: My Lord, it is a part 36 offer and your Lordships have it --

LORD JUSTICE BROOKE: Before proceedings bought?

[172]MR INFIELD: Before proceedings brought.

LORD JUSTICE BROOKE: What sort of animal is that?

[174]MR INFIELD: My Lord, it is set out in 36.10 of the CPR.

LORD JUSTICE BROOKE: The court to take into account --

[176]MR INFIELD: Yes. My Lord, can I just remind your Lordships of what was said by this court in a case --

LORD JUSTICE JACOB: Do we have this letter?

[178]MR INFIELD: Your Lordships have the letter in the bundle that would have been -- in the little bundle provided by my instructing solicitors in support of what would have been my appeal on costs, but now of course falls away, at page 58. Do your Lordships have that?

LORD JUSTICE BROOKE: Yes.

LORD JUSTICE JACOB: These points are the points on this map that we have been using, the basic map.

[181]MR INFIELD: My Lord, that is right, and point A mentioned in this letter is what we now know as point J, just to confuse things. Perhaps I can start at the second paragraph: "(unchecked) Our client remains of the sensible view that this matter should be taken to resolution without litigation, we agreed. You will also know that until the boundary is determined and/or agreed, then both our clients face difficulties should they wish to sell their properties. As you have no doubt advised your client, boundary disputes are rarely commercially worthwhile. Accordingly, we hope you will advise your client that compromising this dispute would be beneficial to both sides. Our client has already made offers in an attempt to compromise this dispute, both on their own and through us. Thus our clients feel that any litigation is both unnecessary and regrettable. They presently feel that proceedings may have to be issued and accordingly, unless a response is received to this letter within the time set out below, then our instructions are to brief counsel to settle the necessary application for a declaration of appropriate orders. As we understand it, both parties have made offers on the basis of straight lines solutions, differing only in the points through which the line is projected. Indeed, as long ago as 28th October last year our clients wrote that we would accept any straight line projection through point A --

LORD JUSTICE BROOKE: That equals J, does it?

[183]MR INFIELD: That is right, my Lord:

"(unchecked)-- with yourselves choosing any other reasonable point to (inaudible), that remains our client's offer. Taking the survey (inaudible) by your client's surveyor, Mr Dickin, at the rear of the garden [that is point J] on the centre line of the hedge as a point of reference, our client is prepared to accept any sensible straight line boundary projected through that point. If this can be agreed then we would direct that a legal rectification is drawn up, together with amended plans so that any agreement is clearly documented to avoid any future disagreement. If such an offer is not acceptable, then we believe the only possible resolution is for a joint surveyor to be retained to adjudicate on the matter. This was initially proposed by your client in their letter of 26th November 1999. This is also something that your clients agreed to on a number of occasions in (inaudible) means of resolving this dispute. Indeed, in our initial letter to you of 14th September 2000 we suggested that a surveyor be appointed, and again we were going to take the client's instructions as to whether they would agree with such an appointment. If this is the case, then again we suggest that both parties (inaudible) three potential surveyors from whom we can select one. A joint letter of instruction can then be granted and sent to the surveyor and a site inspection can follow."

Then it contains the usual part 36 paragraph:

"(unchecked) This offer of any sensible straight line through point A or (inaudible) a surveyor is to remain open for 21 days from the date it is made and may be accepted (inaudible) open if the parties agree to liability for costs or the court gives permission."

[184]Mr Leon was ultimately appointed, but not to resolve the dispute, he was appointed as a joint surveyor. He came to the conclusion that it was not possible to decide what was the proper boundary, but he suggested a compromise. He produced that report on 14th September 2001 before proceedings were issued. On 19th October 2001 my instructing solicitors wrote a part 36 offer, offering that compromise line. Your Lordship will get the idea that, contrary to what my learned friend says, my clients were very keen indeed to settle this case because they recognised the costs and so on that would increase. Before proceedings began --

LORD JUSTICE BROOKE: There is an open letter, again in this form, offering a compromise line on 19th October?

[186]MR INFIELD: That was a part 36 offer, my Lord.

LORD JUSTICE BROOKE: Offer to the same effect?

[188]MR INFIELD: My Lord, yes. I am sorry, I refer to it as that because of 36.10, but your Lordship interprets what I say correctly.

[189]The best that the appellants got before proceedings were issued --

LORD JUSTICE JACOB: So before proceedings you have offered the compromise line?

[191]MR INFIELD: Or any straight line.

LORD JUSTICE JACOB: Yes, but you have offered the compromise line after Mr Leon's report.

[193]MR INFIELD: That is right, but we never withdrew the "any straight line".

LORD JUSTICE JACOB: Did they say "No, it is not good enough" or what?

[195]MR INFIELD: 29th October, my instructing solicitors saying they have not had a reply. 3rd December we get an open letter and a without prejudice letter. The part 36 offer is that the boundary should run, it is again through the central pillar, which was different from what was ultimately found, then to point J and then down to the 61 metre point.

LORD JUSTICE BROOKE: They were saying from J to H, were they?

[197]MR INFIELD: J to H, but then different in the garden than what was ultimately agreed, and with each party to bear their own costs.

LORD JUSTICE JACOB: Just tell me, this compromise line Mr Leon's, that works out, roughly speaking, where the line eventually agreed between the houses in fact runs, does it, because you cannot tell from this map?

[199]MR INFIELD: No, my Lord. It is easier to see at the southern end, it is one between H and the intended line.

LORD JUSTICE BROOKE: It is not at all clear what line was agreed so the judge did not have to decide it.

[201]MR INFIELD: J to F.

LORD JUSTICE JACOB: That is pretty well the same as the compromise line, is it not?

[203]MR INFIELD: It is also the same as the intended line, my Lord. I do not think the difference between the compromise line and the intended line in the gardens was very significant.

LORD JUSTICE JACOB: Are you in a position to say, before the proceedings ever started, you offered something which was this compromise line?

LORD JUSTICE BROOKE: This looks like the letter of 16th November, any straight line.

[206]MR INFIELD: Yes. My Lord, can I just say this. My clients are very keen to settle this because they recognise that what has happened would happen. The fact is that Mr and Mrs Phillips find themselves now in this odd position that, whereas my clients now have a paddock which goes down from point J to the 61 metre mark, Mr and Mrs Phillips, in my submission, still have a paddock in a straight line from point J down to, I will call it the 72 metre mark. So they have actually gained nothing by this litigation, and yet here we were, before litigation started, offering them any straight line, including the compromise line, which would have given them more than they now find themselves having.

LORD JUSTICE BROOKE: You are saying that you ought to be allowed the costs of the action up to the date of trial --

[208]MR INFIELD: From the time of that offer, either --

LORD JUSTICE BROOKE: Either from 16th November 2000 or from 19th October 2001.

[210]MR INFIELD: Precisely, my Lord.

LORD JUSTICE BROOKE: And even if the judge gave you too much, the result of the decision of the Court of Appeal is to restore the order to something better than you were offering.

[212]MR INFIELD: May I just remind your Lordships, if I may be so bold, of the decision of this court in Hut v Rodson(?), which was precisely on offers made under part 36.10. Your Lordships have it, I think, in the bundle of authorities my learned friend has handed up. I am afraid I do not have the numbering. If I can summarise the headnote. This was a road traffic accident case in which --

LORD JUSTICE BROOKE: What does it say that we do not already know?

[214]MR INFIELD: My Lord, I suspect nothing.

LORD JUSTICE BROOKE: I have just glanced at a little bit of it, it all seems very similar.

[216]MR INFIELD: My Lord, may I just take your Lordships to paragraph 55:

"In any event, I can see no logical reason why costs consequences which follow from an offer which fulfils the requirements of part 36 and which is made after the commencement of proceedings should not equally follow from an offer which also fulfils those requirements --"

LORD JUSTICE BROOKE: No, nor do I. Just get on with it.

[218]MR INFIELD:

"Indeed, I can see very good reasons why the consequences should be the same."

LORD JUSTICE BROOKE: Yes, so do I.

[220]MR INFIELD: My Lord, if I have all your Lordships with me I need not go on. I have no wish to bore your Lordships.

LORD JUSTICE SEDLEY: We have read it, thank you.

[222]MR DARTON: My Lords, can I make three points in reply, most of them refer to the correspondence, because I think it important to bear in mind, firstly -- my first point is that any straight line that ran through the garden and through the paddock would have been worse for the defendants than the line that has been achieved, because you will only get to the 61 metre mark if you take it through the oil tank, and if you take any line which clears the oil tank, then you are going to get a measurement beyond 61 metres at the bottom of the paddock, so therefore it is not the case that any straight line extension is an offer that the claimants have bettered or equalled, they have not, they have done worse as a consequence.

LORD JUSTICE BROOKE: This compromise line, which presumably is a straight line --

[224]MR DARTON: The compromise line --

LORD JUSTICE BROOKE: -- would have finished your clients up with rather better than they have finished up as a result of this appeal.

[226]MR DARTON: No, my Lords.

LORD JUSTICE BROOKE: No?

[228]MR DARTON: Because they have given some metres at the bottom of the paddock, and the line between the gardens would have been tight up against the tank, because if you look at the plan, the compromise line runs between points G and F, whereas in fact what has been found is that the garden boundary is between F and J, so my clients gained on that, and the paddock boundary is between J and H. But, my Lords -- so in fact more land has been gained. My Lords, the other point to make with regard to the compromise line, and I think may hold more the key as to why it was rejected, is the offer was put forward to settle on any line pursuant to part 36; in other words, the claimants would have their costs.

LORD JUSTICE BROOKE: Not looking at the letter before action.

[230]MR DARTON: That is how it was framed, and that was certainly the intention, as we understood --

LORD JUSTICE SEDLEY: What, you mean pre-litigation costs?

[232]MR DARTON: Yes, my Lord.

LORD JUSTICE SEDLEY: Costs that are irrecoverable?

[234]MR DARTON: My Lords, certainly that is how we had understood it.

LORD JUSTICE SEDLEY: 36.14 may give you the costs once proceedings are issued, it cannot possibly give anybody pre-litigation costs. Everybody knows that it can cost you more to consult your solicitor than your solicitor recovers for you.

[236]MR DARTON: My Lords, so be it. The position that they had with regard to the compromise line, and I think this must be borne in mind, is that it was proposed by Mr Leon, who had not been appointed to adjudicate, and on the basis that it must clearly be wrong on the opinions he had given which he had been instructed to give.

LORD JUSTICE JACOB: I follow that, but in reality what these parties needed was a line settling somehow, because in fact the value of the land we are talking about is neither here nor there. Mr Leon came along and said "have this line" and you said "no".

LORD JUSTICE BROOKE: Is F-J, and where that finishes, which I think you call the intended line, a straight line?

[239]MR DARTON: F-J is a straight line, my Lords.

LORD JUSTICE BROOKE: Finishing off to the extreme left, and does that go through the oil tank?

[241]MR DARTON: F-J does not go through the oil tank.

LORD JUSTICE BROOKE: Does not?

[243]MR DARTON: No, and it leaves a little bit of space clear of the oil tank as well.

LORD JUSTICE BROOKE: That is a straight line through point A, is it not?

[245]MR DARTON: My Lords, yes, but then you carry it on down the paddock and that is where you end up with your 69.1, or you end up at the green broken line, which is a point somewhere in between. Now, my Lords, it seems to me difficult then --

LORD JUSTICE BROOKE: When was the compromise reached about the garden? How long before trial?

[247]MR DARTON: Just before Christmas, my Lords, of last year. I think that, strictly speaking, the surveyors had reported back to the parties, Mr Rocks and Mr Calvert having met, and that then provoked the line of correspondence written by those instructing me to which your Lordships have been referred.

LORD JUSTICE BROOKE: So it could be said there were two disputes: one, because the parties never resolved it, and the costs of the dispute about the garden, and then the costs of a dispute about the line through the paddock.

[249]MR DARTON: My Lords, it could, yes, but again that troubles us because no-one was proposing to break them up, that is really what broke the log jam to a great extent, the moment you separated the two out.

LORD JUSTICE BROOKE: Is there anything else you can usefully add?

[251]MR DARTON: My Lord, the third point is that with regard to the triangle of the land, the argument being that we have not recovered any land, I have to say, my Lord, that that would (inaudible) any compromise. If the point is right, then by compromising with the claimants we would not have acquired that land. If one follows it through logically --

LORD JUSTICE BROOKE: Well, the title of anybody else had been extinguished, had it not?

[253]MR DARTON: If one follows it through logically, the consequence is that if there is a triangle of land that was not conveyed by the Hurst estate, and the claimants do not have it but nor have we acquired it, then it is owned by the Hurst estate.

LORD JUSTICE BROOKE: I thought the Hurst estate registered title --

LORD JUSTICE JACOB: No, B&B.

LORD JUSTICE SEDLEY: They will probably sell it to a speculator.

[257]MR DARTON: My Lords, the point that I wish to make though is that there was nothing in a compromise -- if that is right, that does not mean a compromise with the claimants that would have given us --

LORD JUSTICE JACOB: In the real world, it probably would have done just as well because B&B are not going to come along and collect this bit.

[259]MR DARTON: No, my Lord, but by the same token, in a real world, now having the claimants' line determined, I think it is very unlikely there is going to be anyone to challenge our possession of that strip; or, alternatively, that we write to B&B and ask them to confirm that they would not do so.

LORD JUSTICE JACOB: Well, the other side might also write to B&B and do the same thing.

[261]MR DARTON: They might, my Lord, but we have not determined the issue on that boundary, so we have not won or lost on it is what I am trying to indicate, but I do go back and say that if one is treating it in terms of part 36, it is very difficult to criticise us for not accepting a compromise line which would have given us less than we have achieved in this court and for not awarding our costs from the date upon which we properly offered to settle on the line that this court has found to be correct and on terms that both parties paid their own costs.

LORD JUSTICE BROOKE: Yes. We have that.

[263]MR DARTON: I say a plague on both houses should reflect up to that date, no order for costs, but we should have our costs from that date. (The court adjourned for a short time)

LORD JUSTICE BROOKE: In relation to the costs of the appeal, we have already directed that the appellants should receive their costs of the appeal, but they should not receive any costs in relation to the application to adduce new evidence.

[265]There is also before us an application by the other side for permission to appeal, but that is in relation to the costs order below, supposing we had upheld the order of the judge, so that application falls away.

[266]In relation to the costs below, we do not consider that the letters of 16th November 2000 or 19th October 2001 are effective letters with the effects set out in part 36. On the other hand, we take them into account in deciding what is the appropriate order as to costs below.

[267]We form the view that the appropriate order, in the light of those letters, is that there should be no order as to costs up to 21 days after 25th October 2002, but that the letter of 25th October 2002 does have the effect that the appropriate order thereafter is that the claimants should pay the defendants their costs thereafter, including the trial.

[268]MR DARTON: My Lord, I assume that the costs of the appeal will have to be assessed.

LORD JUSTICE BROOKE: Seems an awful pity.

[270]MR DARTON: My Lords, it may be they will be agreed. The only reason I say this is not only has the schedule not been served, but I have not had an opportunity to delve with side as to that, but it would be necessary to extract out the costs --

LORD JUSTICE BROOKE: Your solicitors costs are lower than the other side's costs of the appeal. Your own costs are a little bit higher, but a certain amount of them relates to the resistance to the other side's application and a certain amount of it relates to the application for new evidence, which you are not getting your costs of, and the disbursements are only a little bit higher because you had to pay the court fee, so it does seem to me at this level one should be able to assess those without wasting the time of the costs judge, but the other side are entitled to take the point that you have not served it on them.

LORD JUSTICE JACOB: They may take the view that they will be happy if we assess them, I do not know.

[273]MR INFIELD: My Lord, I simply do not know. My Lord, your Lordship heard me, as my learned friend did before, and I expected to be handed a copy of the schedule whilst your Lordships were out. I still have not received it. Your Lordships have the advantage of me.

LORD JUSTICE BROOKE: I know, but you might have asked for it while we were out.

[275]MR INFIELD: My Lord, I am sorry, I expected, if my learned friend was going to make an application for summary assessment, to be given it.

LORD JUSTICE BROOKE: I am just anxious to save both parties the prospective costs of a detailed assessment when one is looking at comparatively low figures and the figures on each side bear remarkable similarity.

[277]MR INFIELD: My Lord, I am certainly not saying that we will not agree the costs. I hope we will be able to.

LORD JUSTICE BROOKE: So do I.

[279]MR INFIELD: What I ask is that your Lordship make an order for detailed assessment so that we can at least see what costs we are going to be asked to pay.

LORD JUSTICE BROOKE: I very much hope you can agree these costs pretty fast, even if you have been unable to agree anything else.

Order

Application to adduce new evidence allowed. Appeal allowed. The appellants to receive their costs of the appeal, to be assessed if not agreed, but they should not receive any costs in relation to the application to adduce new evidence. No order as to the costs below up to 21 days after 25th October 2002, but the claimants to pay the defendants their costs thereafter, including the trial. (Order does not form part of approved judgment) POST-JUDGMENT DISCUSSION

Cited in 11 later judgments

and 2 more of the most senior