Carroll v Kynaston [2010] EWCA Civ 1404

Case No A2/2009/1100[2010] EWCA Civ 1404IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
MRS JUSTICE SHARP
HQ08X01651
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13th December 2010
Before
LORD JUSTICE WARDLORD JUSTICE ELIASLORD JUSTICE PATTEN
Between
Peter CarrollAppellantChristine KynastonRespondent
Mr Jonathan McNae appeared for appellantMrs Christine Kynaston appeared in person for in personHearing Hearing date: 13th July 2010
Judgment
[1]This is litigation of the worst and most dreadful kind. I shall not dignify the squalid proceedings by setting out more detail than is absolutely necessary of the incessant battles waged over many years by the appellant, Mr Peter Carroll, against the respondent, Mrs Christine Kynaston, who has at times launched her own retaliatory counter-attacks against him. Suffice it to say that in 2003 Mr Carroll was made the subject of an Extended Civil Restraint Order for two years and then a General Civil Restraint Order for two years was made in 2005, extended by a further six months in 2007. He is still subject to an injunction granted by Gray J. on 2nd September 2003 forbidding him from pursuing any conduct which amounts to harassment of Mrs Kynaston. On 21st November 2006 Eady J. granted her another injunction restraining him from directly or indirectly entering into any communication with her which is in its terms abusive, insulting or threatening in any way or entering into any communication with third parties having a bearing upon these proceedings which is in its terms abusive, insulting or threatening in any way. In the course of their numerous forays into the courts a number of orders for costs have been made in favour of Mr Carroll, five of which have not been paid and he on the other hand owed her money in respect of costs orders made against him which he has not paid.[2]By 2007 the only remaining piece of litigation was the counter-claim for libel brought by Mrs Kynaston against Mr Carroll. Two or three weeks of precious court time had been set aside to try it. On 18th May 2007, about a month before the trial, Mr Carroll sent a long email to Mrs Kynaston containing an offer of settlement in these terms:
“1. Upon:- … e. the parties unequivocally agreeing to forego all claims (Civil and Criminal) against each other howsoever arising and in whichever jurisdiction, that arose before the date of this agreement whether known or not at that time, and … g. the Claimant waiving the outstanding costs due form (sic) the defendant at £3,500, and h. the Claimant waiving the cost of his successful application to vary the order of 24th April 2007 before Mr J Eady on 16th May 2007, and i. the Claimant waiving the costs of his successful application before Master on 17th May 2007, 2. The Counterclaim be dismissed with no Order as to Costs. I agree to the terms of this Order. Signed: ……….. Signed: ……….. Peter Carroll (Claimant) Christine Kynaston (Defendant)”
On 21st May 2007 Mrs Kynaston replied, “I accept your offer dated 18th May 2007” and she attached her signed acceptance of that offer, a copy of her draft consent order giving effect to it and a copy of the letter to the court presumably explaining what had happened. Later that day Mr Carroll acknowledged receipt. Peter Carroll (Claimant) Christine Kynaston (Defendant)”[3]Did that bring the litigation to an end? Oh no, with these parties, certainly not. Differences soon arose between them as to whether the action had indeed been compromised and, if there was an agreement, whether the other of them was in breach of it. There was a bitter dispute about the meaning of clause e of the preamble as to whether it covered outstanding unpaid costs orders other than those specifically referred to in g, h and i. As a result the court did not know whether the trial was effective and Eady J., as the judge in charge of the libel list, directed that the fixture be retained but that the trial judge first determine whether or not the counterclaim had been compromised. So the matter came before Field J. on 11th June 2007.[4]He noted that Mrs Kynaston was apprehensive that Mr Carroll would not comply with the various undertakings and promises he had given and she was also concerned that the effect of the agreement would not, as she contended it should, wipe out various costs orders against her. She argued that the terms as to what was to happen to the outstanding costs orders were not clear enough for there to be a binding agreement. Field J. ruled that:
“The question I have to decide is whether or not a binding agreement of settlement, putting an end to the litigation between the parties, resulted from Mrs Kynaston’s acceptance of the terms proffered by Mr Carroll.”
[5]Giving an ex tempore judgment after hearing the parties in person, he concluded:
“6. In my judgment, it is perfectly clear that a binding agreement of settlement came into existence when Mrs Kynaston signed the offer and returned it to Mr Carroll under cover of a letter and an email in which she said, “I accept your offer dated 18th May 2007.”
The offer is a detailed offer. There may be questions as to its effect but it is plainly sufficient for a binding contract to come into existence upon acceptance of the offer … 7. I therefore find that this very troublesome and prolonged litigation was brought to an end on 21st May when Mrs Kynaston accepted this offer. In legal terms, the consequences of that acceptance was that all the claims which are identified as being settled in the offer merge in the agreement and no longer have any independent existence as claims – they are gone. What remains is the agreement, and there may or may not be a dispute over the meaning of the agreement, but from now on, it is the agreement that governs the relationship between the parties so far as the matters set out in the agreement are concerned. 8. I propose to draw up an order under which the counter-claim is dismissed … 9. It is plain from what I have heard that there is similar disagreement as to the effect of the order.” [I suspect he meant to say “agreement”.] “It would be regrettable if there is to be yet further litigation on whether this order” [sic?] “has an effect contended for by one party and disputed by another. But if it is going to be the position (and I hope very much it is not) there must be fresh proceedings to determine the rival contentions. I do not propose, without properly constituted legal proceedings on the agreement, to determine its meaning at this point. I am going to order that there is a cooling off period of 24 days and thereafter either party will free, without any encouragement from the court, to state in a letter to the other any claim which is intended to be pursued on the agreement, or, alternatively, in respect outstanding costs orders. Such a letter setting out claims under the agreement, or claims as to costs, must be sent by one party to the other within 7 days of the end of the cooling off period. That letter must then be responded to within 14 days. Thereafter, if any claim is to be made to the court in respect either of costs or in respect of the agreement, then the court procedures must be complied with by both parties. 10. I am sure I am not the first judicial officer to urge both sides to bury the hatchet and spend their time on matters far more fruitful and less painful and vexing than pursuing allegations against each other. I urge both sides to call it a day. The litigation is at an end by virtue of the settlement. Let that be that. … 11. The courts are not here to allow parties to engage in personal vendettas. They are here to determine bona fide and reasonable disputes which are not settled by agreement between the parties. That is all I have to say. An order encompassing what I have directed will be drawn up, I will initial it and it will be sealed and it will go on the court file.”[6]Precisely what happened then is not entirely clear since we have no transcript of the proceedings after judgment. When seeking permission for this appeal, Mr Carroll explained to Dyson L.J.:
“I was simply not permitted to raise the issue of costs … And I was never given the opportunity to raise the issue of costs. The judge, like so many before him, simply threw up his hands and walked away. He said, he actually said, “That’s it, I’m doing nothing else” and he walked out of the room, so I didn’t – as I stood to address the issue of costs at the end of his judgment, he walked out of the room, so now I’m left carrying two lots of costs and a damages claim of £5,000.”
Mrs Kynaston explained to Sharp J. in the proceedings now under appeal:
“I submitted costs for summary assessment on paper. As far as I know, Mr Carroll didn’t do so, but at the end of the hearing, Mr Justice Field said at the end of his judgment “I’m going to say no more.”
Mr Carroll immediately stood up and tried to say, well he did say, “But what about my costs?” and Mr Justice Field I think repeated “I’m going to say no more” and he walked out.” A Mr Wynne Edwards, who has acted as Mr Carroll’s solicitor, was in court and gives this account:
“At the end of his judgment the judge rose to leave the court. The appellant stood up to, I believe, addressed the issue of costs. The judge walked away and out of the courtroom whilst the appellant was still standing and without having had the opportunity to present the argument that he wished to advance.”
[7]It is not suggested that Mr Carroll asked the associate to call the judge back so that he could present his argument. The matter was simply left there. The order drawn by the judge himself was:
“IT IS HEREBY DECLARED that a binding agreement of settlement of the litigation herein was concluded when the Defendant accepted the Claimant’s offer to settle on the terms therein set out on or about 21st May 2007 AND IT IS HEREBY ORDERED 1. The Counterclaim herein is dismissed with no order as to costs. … 4. No claims are to be made concerning: (a) the meaning or effect of the said settlement agreement (including a claim for a declaration as aforesaid); or (b) as to any outstanding costs order or orders in these proceedings for a period of 14 days from the date hereof. Thereafter any such claim is to be set out in a letter sent by the party making it to the other after a further period of 7 days. 5. If any claim for breach of the settlement agreement or for a declaration as to its meaning or effect is made by either party after the aforesaid total period of 21 days fresh proceedings must be issued and served in accordance with CPR. ”
It is not suggested that Mr Carroll wrote to the judge inviting him to vary the order the judge had drawn which expressly made no order as to costs. Nor did he apply to the judge or to this court for permission to appeal that order.

AND IT IS HEREBY ORDERED

[8]What he did do was to bring a “home-made” claim against Mrs Kynaston on 29th April 2008 for a declaration that:
“the settlement Agreement dated 21st May 2007 does not preclude the Claimant from recovering the costs that were awarded to him by way of the orders for costs detailed at paragraph 12 above [the unpaid costs orders in his favour]”
This was clearly within the range of further disputes contemplated by Field J as is evident from the terms of the order he made.[9]But Mr Carroll is nothing if not an ingenious, serial litigator. He added a claim for damages for breach of the settlement agreement, asserting in his particulars of claim:
“18. By attempting to continue with the Trial of her counter-claim, the defendant was in breach of the Agreement dated 21st May 2007 as a consequence of which, the claimant suffered loss and damage. Particulars of loss and damage 19. Legal fees paid to Greene Wood and McLean LLP £5,000 20. Claimant’s travelling expenses in attending court on 11th June 2007 of £54. … And the claimant claims: 22. Damages of £5,054 in respect of losses incurred arising from the defendant’s breach of the Agreement dated 21st May 2007.”
Particulars of loss and damage

And the claimant claims:

[10]Mrs Kynaston denied that she was in breach of the agreement; she accused him of being in breach of it and she claimed her costs of the hearing of 11th June in the sum of £2,311.40 as damages for his breach; she claimed her outstanding unpaid costs of £3,330.26 and she added a counter-claim for damages for harassment arising out of his email communication of 23rd May in which Mr Carroll wrote of her (and this gives a flavour of the hostility, the flavour inevitably leaving a bad taste in the mouth ):
“You are an ungrateful monster. After all the harm you have done and the mercy I have shown you, you could at least have shown some gratitude but not you, you lying grasping monster.”
[11]Just for good measure she made a separate application for Mr Carroll’s committal to prison for sundry alleged breaches of the injunctions made against him to restrain him harassing her or threatening her or defaming her, one of which was the above abusive message. An application was then made by Mrs Kynaston for summary judgment and/or to strike out the claim. It first came before the Court on 9th September 2008 and was adjourned part heard to 30th October 2008 when it was dismissed with costs reserved.[12]It fell to Mrs Justice Sharp to try these matters. On 18th March 2009 she declared that the agreement made between the parties in May did not preclude the recovery or enforcement of previously ordered costs awards made in proceedings between the parties (whether quantified or not), save for those awards specifically referred to as being waived by the terms of the agreement. There is no appeal or cross appeal against that order. She then dismissed the claimant’s claim for damages for breach of contract and the defendant’s set-off. As for the defendant’s application for committal of the claimant to prison for contempt of court, she declared that the claimant was in breach of his undertaking given to the court before Eady J. on 21st November 2006 and she fined him £3,500. As to costs, she ordered that the defendant pay 70% of the claimant’s costs of an unsuccessful application for summary judgment made by the defendant, but ordered the claimant to pay the defendant’s costs of the committal proceedings summarily assessed in the sum of £2,194.43.[13]Dyson L.J., on a renewed application for permission to appeal, gave Mr Carroll permission to appeal in three respects, “(a) claim for damages for breach of the settlement agreement, (b) order for costs in relation to the application for summary judgment and (c) the contempt proceedings.”

The appeal on costs as damages for breach of agreement

[14]Sharp J. took this view of that claim: “34. The costs now claimed as damages for breach of the settlement agreement were incurred in the course of a previous action in order, says the claimant, to prepare for the trial. As such, they fell to be awarded or not at the hearing before Mr Justice Field on 11th June 2007. At that hearing Mr Justice Field did not, it appears, make any order for costs. It is common ground that paragraph 1, which is in these terms: ‘1. The counterclaim herein is dismissed with no order as to costs.’ only purported to reflect what the parties had agreed with regard to the costs of the counterclaim as part of the settlement agreement. It is said on behalf of the claimant that he was in person and did not make any application for costs. The defendant says that he attempted to ask for them, but Mr Justice Field refused to deal with the matter. Be that as it may, the position was that the claimant’s entitlement to costs which are claimed in these proceedings crystallised at the point when Mr Justice Field determined the argument before him in the claimant’s favour. That argument was whether the agreement was binding or not and it was an argument that the defendant lost.” ‘1. The counterclaim herein is dismissed with no order as to costs.’[15]Mr Jonathan McNae, who appeared below as he does here, submitted that a fresh action for damages could exceptionally be brought especially since the judgment of Field J. contemplated that. Sharp J. rejected that argument, holding that:
“35. … What Mr Justice Field was contemplating, so it seems to me, was the parties resolving their dispute as to the meaning of the settlement agreement by way of a fresh action if necessary. He was not contemplating a fresh action for the recovery of costs that had been incurred in the first action and could have been awarded in it.”
[16]Next Mr McNae submitted that this was not a case simply of bringing an action for damages being the costs not awarded in a previous action: this was a claim for damages for breach of contract. Sharp J. rejected that argument holding:
“37. … The claimant could have asked for the costs in the earlier action and on his case he did not. Whilst it might have been argued there was room for permitting a claim for his irrecoverable costs, that is not the nature of the claim now being made. In these circumstances it seems to me that the general rule and policy considerations which underlie it should apply, and having failed to ask for or recover his costs in action number one, he should not now be entitled to recover them in this second action.”
[17]In this court Mr McNae does not challenge the general rule which he expresses in these terms:
“That parties should not usually be entitled to bring a fresh action for damages for costs unrecovered in a prior action between the same parties. The policy reasons for this are obvious: - it would make a nonsense of the rules of the Court as to the award of costs and the assessment of costs if the successful party could recover as damages either the costs withheld by the court or any further costs he has incurred to his solicitor beyond the assessed costs, whether in the same action or in a further action brought solely for this purpose. Further, the trial judge is in the best position to determine the position, and further litigation based solely on costs should be discouraged.”
Nevertheless he submits that this case forms an exception to the general rule because:
“a. the facts of the case specifically contemplate the possibility of further proceedings between the parties; b. the appellant was not given an opportunity to ask for his costs before the trial judge; c. the general rule is not of application as it relates to a different situation to the one in the instant case.”
[18]Mr McNae derives support for his first proposition from the fact that Field J. directed a cooling off period in respect of all outstanding matters before any further litigation was commenced. Thus he submits that the court did not contemplate that the order would in fact conclude the proceedings between the parties; on the contrary, Field J. specifically contemplated that there may be claims for damages for breach of contract and that there may be separate proceedings in relation to costs.[19]I reject those submissions. When in paragraph 9 of his judgment (see [5] above) Field J. gave directions for the cooling off period for the parties to set out any “claims as to costs”, he was in my view dealing with the existing costs orders each had against the other and the resolution of the problem identified by Mrs Kynaston as to the meaning of paragraph e of the preamble to the compromise (“agreeing to forego all claims (Civil and Criminal) against each other howsoever arising … that arose before the date of this agreement …”). It is preposterous to think that Field J. had in mind a claim for damages for breach of the compromise agreement when the measure of that alleged damage was the very costs that it was within his power to order or not as the case may be. There was no earthly reason why he would have given directions for a separate action to determine the costs of and incidental to his having to rule whether or not there was a compromise of the counterclaim in which case the counterclaim would be dismissed, or if not, the trial would proceed. He was making it perfectly plain that there was a binding agreement of settlement which brought the counterclaim to an end but he acknowledged, for example in paragraph 7 of his judgment, that there may or may not be a dispute over the meaning of the agreement. The proper construction of the agreement would determine whether previous orders for costs were or were not still enforceable one against the other or whether they had “merge(d) in the agreement and no longer had any independent existence as claims”, see paragraph 7 of the judgment.[20]As for the second argument that Mr Carroll had no opportunity to ask for costs before Field J., I reject this argument also. It may be that Mr Carroll uttered words asking for costs which were not heard by Field J. as he left the court. That did not prevent his asking the associate to invite the judge to return to deal with that issue whether to rule on the application made but ignored by the judge or to make an application which for one reason or another, good or bad, he had not made before the judge retired from his court. Mr Carroll may be a litigant in person but he is an experienced litigant in person and nothing we know about him suggests he is a shrinking violet unable to fight his corner.[21]Even if he was inhibited from calling the judge back into court and even if Field J. was behaving “like so many before him” (see his submission to Dyson L.J. recorded at [6] above) in storming out of court (and perhaps I should not admit any sneaking sympathy for those judges), Mr Carroll was no ingénue when it comes to launching an application for permission to appeal. His was a well-trodden path to the Court of Appeal office. When he received the order which had been drawn by the judge himself and that order expressly ordered: “1. The counterclaim herein is dismissed with no order as to costs”, he could and should have sought permission to appeal it just as he sought permission to appeal the costs order made by Sharp J. He did not do so.[22]In the result, if he felt some injustice had been done to him, he had ample opportunity to seek redress and should have done so. This second argument does not justify the launch of further proceedings.[23]I turn to the third argument that the general rule is not of application as it relates to a different situation to the one in the instant case. The general rule accepted by Mr McNae was expressed in McGregor on Damages 18th ed., 17-003 as follows:
“In a civil action the successful party will generally recover costs against the other party. In earlier days these were called party and party costs, or taxed costs, to be distinguished from solicitor and client costs which was the term formerly used for the greater amount of costs, however reasonable, payable by the client to his solicitor. It would make nonsense of the rules about costs if the successful party in an action who has been awarded costs could claim in a further action by way of damages the amount by which the costs awarded him fell short of the costs actually incurred by him. This has naturally never been allowed, and it is hardly surprising that there is a dearth of authority on the point. Cockburn v Edwards (1881) 18 Ch. D 449 is probably the only case in which such a claim was attempted but without success …”
[24]In Cockburn v Edwards, the defendant, a solicitor, was in breach of his duty to the plaintiff to ensure that the power of sale in a deed of mortgage was in the usual form and the question was to what damages ought the defendant to be held liable. Among the heads of claim was the difference between the party and party costs which were recoverable in the action and the solicitor and client costs which had not been allowed. Sir George Jessel, M.R. held at p. 459:
“I am of opinion that it is not according to law to give to a party by way of damages the costs as between solicitor and client of the litigation in which the damages are recovered. The law gives a successful litigant his costs as between party and party, and he cannot be said to sustain damage by not getting them as between solicitor and client.”
Brett L.J. explained at p. 462:
“The law considers the extra costs which are disallowed on taxation between party and party as a luxury for which the other party ought in no case to be liable, and they cannot be allowed by way of damages.”
[25]Two years later in Quartz Hill Consolidated Gold Mining Co. v Eyre (1883) 11 Q.B.D. 674 the defendant presented a petition to wind up the plaintiff company. It was never served on the company and the defendant gave notice that he was withdrawing it, but the company nevertheless appeared to ask for its dismissal. The petition was dismissed without costs. The company then brought an action for malicious prosecution and the damage claimed was the expenditure of costs incurred in opposing the petition. The Court of Appeal held that the damage was not recoverable. Bowen L.J. said at p. 690:
“The bringing of an ordinary action does not as a natural or necessary consequence involve any injury to a man's property, for this reason, that the only costs which the law recognises, and for which it will compensate him, are the costs properly incurred in the action itself. For those the successful defendant will have been already compensated, so far as the law chooses to compensate him. If the judge refuses to give him costs, it is because he does not deserve them: if he deserves them, he will get them in the original action: if he does not deserve them, he ought not to get them in a subsequent action.”
[26]Mr McNae submits that the position is different where a claimant has a free-standing cause of action which exists independently of the proceedings in which the costs sought to be recovered as damages have been incurred. As Devlin L.J. said in Berry v British Transport Commission [1962] 1 Q.B. 306, 322:
“I find it difficult to see why the law should not now recognise one standard of costs as between litigants and another when those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong.”
That was a claim for malicious prosecution where the special damage included the sums actually expended by way of costs on the plaintiffs defence in the magistrates court and quarter sessions, credit being given for the small award of costs made in her favour on her acquittal on appeal. Other passages from the judgment of Devlin L.J. are worth citing. At p. 320/1 he said:
“The reason for the rule [that solicitor and client costs are not recoverable as damages] is not that the costs incurred in excess of the party and party allowance are deemed to be unreasonable; it is that what is presumed to be the same question cannot be gone into twice. The rule appears to have been first laid down by Mansfield C.J. in Hathaway v. Barrow (1807) 1 Camp. 151 where he put it on the ground that "it would be incongruous to allow a person one sum as costs in one court, and a different sum for the same costs in another court." If in the earlier case there has been no adjudication upon costs (as distinct from an adjudication that there shall be no order as to costs), a party may recover all his costs assessed on the reasonable, and not on the necessary, basis. If a party has failed to apply for costs which he would have got if he had asked for them, a subsequent claim for damages may be defeated; but that would be because in such a case his loss would be held to be due to his own fault or omission.”
At p. 325 he said:
“In civil cases a successful party may not without good reason be deprived of any part of his costs. If he does not get his costs, it means either that it was not necessary for him to incur them or that there has been some fault or misconduct for which he is responsible. It is thus possible to say that in a civil case, as Bowen L.J. said in Quartz Hill Consolidated Gold Mining Co. v. Eyre, a successful party gets all the compensation which in the eyes of the law he deserves. This cannot be said in a criminal case, for there the exercise of the discretion is entirely unfettered.”
Danckwerts L.J. said at p. 336:
“… the court is given a judicial discretion [as regards costs in civil proceedings], and, in practice, the costs are taxed, and as a result the costs so ascertained are treated as the maximum proper costs which the party deserves to receive; anything beyond that is treated as something not recognised by the law. Consequently, if a successful party is, in an exercise of the judicial discretion in any particular case, refused costs, that also is an end of the matter. Likewise, if the successful party failed to ask for costs.”
Because the costs involved in that case were incurred in criminal proceedings which are different from civil proceedings the claimant succeeded.[27]The claimant also succeeded in Union Discount Co Ltd v Zoller [2001] EWCA Civ 1755, [2001] EWCA Civ 1755, [2002] 1 W.L.R. 157 where the claimants brought an action for sums owed under a contact containing an exclusive jurisdiction clause. The defendants brought proceedings in New York which, on the claimants’ application were struck out on the ground that the English courts had exclusive jurisdiction over the dispute. No application for costs was made in New York since the costs of the strike-out application would not have been awarded by a New York court. The claimants’ claim to recover the costs of the New York application in the English proceedings was allowed. It is important to see the issue the court was concerned with. Schiemann L.J. giving the judgment of the Court began by stating:
“1. … [This case] concerns the correctness of the statement in Halsbury's Laws of England … that: “Costs incurred in foreign proceedings cannot be recovered in an English action between the same parties”.”
[28]The issue was “outstandingly well formulated” by counsel as follows:
“whether the defendants are right to assert … that as a matter of law the costs of litigation cannot be recovered as damages for breach of contract by one party to the said litigation against another or whether the true principle of law is … that: ‘The costs of prior proceedings between the same parties may be recovered as damages for breach of contract if (as in the present case) the party seeking to recover the costs of the prior proceedings as damages could not in the circumstances of the prior proceedings have obtained an order for the payment of those costs as costs”.”
The court’s conclusion was:
“34. In circumstances such as the present we do not consider that the public interest requires that the claimant should be deprived of its reasonable expenses in litigating at the instance of the defendant in a jurisdiction which the defendant chose in breach of an exclusive jurisdiction clause. The proposition quoted in paragraph 1 of this judgment is too widely stated.”
The distinguishing feature of that case was, therefore, that justice required that the claimant should be permitted to recover costs which the foreign law did not allow him to recover in the foreign proceedings. The case is not authority for a case such as the instant one where the claim relates to costs which could have been recovered in the domestic proceedings.[29]National Westminster Bank Plc v Rabobank Netherland [2007] EWHC 3163 (Comm) is another example of a successful claim. Sir Anthony Coleman held:
“25. … If the winning party can formulate a claim for the whole or part of such costs [the costs of proceedings in a foreign jurisdiction with a costs regime under which the winning party was unable to recover all such costs] in the English Courts as a claim for damages for breach of a separate cause of action (such as breach of a jurisdiction or anti-suit clause as here) there is, in my judgment, no reason as a matter of public policy or otherwise, why he may not recover them subject to ordinary damages rules. Under those rules the burden of proof of failure to mitigate rests on the party in breach ...”
[30]As I have indicated, the instant case can be distinguished from Berry v British Transport Commission because the costs there were costs awarded under the different regime operating in the criminal courts. Our case must also be distinguished from Union Discount Co. Ltd v Zoller and National Westminster Bank v Rabobank Netherlands because there the costs arose in foreign proceedings where there was no possibility of having them awarded in the claimants’ favour in the foreign proceedings. Here the costs of the hearing before Field J. could have been recovered if he had so ordered. If the claimant did not ask for the costs, then he failed to mitigate his loss and cannot recover them as damages in a subsequent action on that ground. His difficulty is compounded by the fact that the judge did deal with costs: he made no order as to the costs. As the citations from the judgments of Bowen, Devlin and Danckwerts L.JJ. all make clear, that is the end of it:
“If the judge refuses to give him costs, it is because he does not deserve them: if he deserves them, he will get them in the original action.” “If he does not get his costs, it means either that it was not necessary for him to incur them or that there has been some fault or misconduct for which he is responsible.” “Consequently, if a successful party is, in the exercise of the judicial discretion in any particular case, refused costs, that is also an end of the matter.”
[31]That conclusion seems to me to accord with sound policy. There must be finality in litigation. Making no order as to costs is an adjudication on the point and the court should not be required to have a second determination of the same issue. The claimant should not be entitled to recover more by way of damages than he could have recovered by way of costs for reasons held good since Cockburn v Edwards. The excess is an irrecoverable luxury. The claimant’s true remedy was to appeal the order actually drawn by Field J. He did not do so. He cannot now do so. He cannot now get by the backdoor what he failed to secure by opening the front door. I regard this as hopeless and would dismiss this part of the appeal.[32]As set out above, Mrs Kynaston applied for summary judgment or to strike out the claim. It was heard on 9th September and adjourned part-heard with costs reserved to 30th October. On 30th October the master reserved judgment which was handed down and an order drawn on 10th November, dismissing the application but reserving the costs.[33]The ground of this appeal is that Sharp J. gave no reasons for making this order. In my judgment that is an unfair characterisation of what happened. The judge first dealt with the costs of the claim, observing in the course of argument that, “The costs of this hearing … fall to be dealt with in accordance with the ordinary principles which are applied by the Court, namely that normally the party who is successful should recover his costs or at least a proportion of them.” Then Mr McNae asked for the costs reserved in the summary judgment application. Mrs Kynaston said this: “My Lady, Master Eyre made a remark which I am sure counsel will recall. At the end of the hearing counsel asked for costs when Master Eyre said that I had lost the application, and learned counsel said: ‘Clearly we’ve won this application; we should have our costs’, and Master Eyre initially said, ‘I’m not sure whether anyshould be awarded in this application, and when counsel pressed the matter, he said it should go before the trial judge.” (The emphasis appears in the transcript.) Mr McNae did not seem to dispute her recollection.[34]The judgment was:
“… on the question of costs the claimant has succeeded in these proceedings in relation to the principal matter which was before me. Having regard to the fact that he failed in respect of his action for breach of contract, and the time which the hearing of that took, he shall have 70% of his costs of and occasioned by the hearing today, on a standard basis to be taxed if not agreed, less the amount which Mrs Kynaston is able to identify. I think she said £280. Mrs Kynaston: Yes, my Lady. Mrs Justice Sharp: Being the costs of the preparation of her bundles, and that will include the costs which were reserved to me of the hearings of 19th (sic) of September 2008 and 30th October 2008 before Master Eyre, but there shall be no order for costs in respect of the hearing on 12th November of 2008.”
It is clear to me that the judge was taking the same view of the summary judgment application as she did of the trial, namely that the claimant had in reality succeeded only in part. She was entitled to treat the summary judgment application in the same way as the trial given that costs were at large in the light of the reservations expressed by Master Eyre who, after all, did not award the claimant the costs of that summary judgment application which indicates he was not wholly convinced that the application was totally without merit. Treating the reserved costs as costs in the case was a perfectly permissible approach. Reading the transcript as a whole, I am satisfied that the reason why the claimant did not succeed was because he failed in respect of his action for breach of contract.[35]I would dismiss this part of the appeal.

The appeal against the findings of contempt

The judge dealt with committal as follows:

“8. It is submitted by Mrs Kynaston, and in my judgment rightly, that the email that was sent” [by Mr Carroll on 23rd May 2007 (see paragraph 10 above)] “was in direct contravention of the order that was made and the undertaking that was given to Mr Justice Eady on 21st November 2006. It is plain in my judgment that it is abusive, insulting and also threatening. Particularly unpleasant is the last line which in my judgment is an implicit threat to go public with allegations about Mrs Kynaston to the Press. 9. I am quite satisfied to the criminal standard that Mr Carroll is, in these circumstances, in breach of the undertaking which was given on 21st November 2006.”
[37]The ground of appeal is that there was excessive delay in bringing the application for contempt, the breach occurring on 23rd May 2007 and the application to commit not being issued until 8th September 2008. Mr Carroll relies on observations of Neuberger L.J. when Mrs Kynaston sought permission to appeal a suspended committal order on the basis that the sentence was too lenient. Mrs Kynaston alleged that Mr Carroll had been guilty of more acts of harassment since that suspended committal order was made and Neuberger L.J. observed that that did not justify permission to appeal being granted. He added:
“While I would most certainly not encourage any such application, if it be the case that there has been further harassment by Mr Carroll, the appropriate course would be to apply in connection with the order made by Cooke J (the suspended committal order) and to invite the judge to lift the suspension. Even if there have been further acts of harassment, it may be that the delay between those acts of harassment and any such application would be enough to justify the judge in not going further in considering such an application. However it would be wrong for me to express any concluded view on any such application.”
[38]Those observations are obiter. I do not regard them as laying down any great point of principle. Nor do I consider this an appropriate case to give guidelines as what constitutes excessive delay in bringing applications for contempt and how the court should approach questions of delay.[39]In the instant case Mrs Kynaston gave a wholly understandable explanation for the delay. She said in the course of argument:
“… you may wonder why it is that I waited so long to bring this application. The fact of the matter is that we had just signed a settlement. At that moment I was hoping that settlement would hold together and I was hoping this was, if you like, a last kick of the corpse, and that we wouldn’t have any more harassment. When Mr Carroll brought this claim against me, I thought, it’s all starting again; he’s going to cause me all manner of grief through hearings and trials and so on – I need to make this application. And that’s why I brought it at this late stage.”
[40]Mr McNae also addressed the question of delay. He said:
“More importantly is the point about delay, and the way I put it is as follows. There is an email that is sent on 23rd May 2007 and there is an application for committal for contempt made on 8th September 2008 – some 15 months almost after the date of the act complained of.”
The judge asked him to deal with other matters before dealing with delay and he returned to the issue later in the transcript saying:
“My Lady, if I move on to the point on delay, this is a crucial point. Not only is delay about the hearing an application for committal, it is also a point that has been made clear in my submission to both Mrs Kynaston and Mr Carroll in previous proceedings and there has been reference already to the decision of Lord Justice Neuberger, as he was, on an appeal in respect of a previous committal application made by Mrs Kynaston made by Mr Carroll.”
In the exchanges that followed the judge observed that delay “may” not “would” be enough to justify judges not going further in considering applications for committal. She pointed out the fact that contempt involves the public interest, not just the interests of litigants themselves. She ended the discussion saying: “Well, it’s a factor for me to consider”, and Mr McNae agreed. Judgment followed shortly after that exchange.[41]Whilst it is true that the judge did not expressly refer to delay in the judgment which followed, it is impossible in the light of the exchanges that took place that she ignored that factor, for what it may be worth. She took account of the fact that there were no other breaches after May, she had regard to a “less than fulsome apology” but nonetheless she took a serious view of the matter. Even though it was “a one off” it had to be looked at in the context of his past misdemeanours. In all the circumstances of this case, delay was such an unimportant element as to be immaterial in any event.[42]Some criticism was made by Mr Carroll when acting in person, but not relied on by Mr McNae, that it was unfair to commit him after this delay when he had sought leave to file an application to commit Mrs Kynaston to prison, leave being necessary because of the civil restraint orders against him. Master Rose apparently dismissed his application on 30th November 2005, ruling that the matters complained of occurred at such a length of time ago that it would be inappropriate for the court to make an order for committal for contempt in respect of them. Mr Carroll seems to be alleging that he has been unfairly treated. I do not agree. His application was made in the context that he needed permission. That did not apply to Mrs Kynaston. More importantly, he can hardly complain about the way Sharp J. dealt with her application when no complaint was made to her of any differential treatment between them as a result of Master Rose’s order. Mr McNae did not raise the point at all and so the judge cannot be criticised at this stage of the proceedings. Sharp J. found him in contempt of an order of the court which was intended to maintain the peace between these warring parties. Any breach of it was a matter for the court to control whether he liked it or not. There was and is a public interest in using the coercive power of committal to restrain further harassment by Mr Carroll of Mrs Kynaston. In the light of the history of this most unfortunate matter, he was lucky not to have been sent to prison.

Conclusion

[43]I regard this appeal as hopeless. Despite the persistent but measured submissions of Mr McNae, I would dismiss the appeal.[44]I agree.[45]I also agree.

Cited in 1 later judgment