Tull, R (on the application of) v Camberwell Green Magistrates' Court & Anor [2004] EWHC 2780 (Admin)

Case No CO/1802/2004[2004] EWHC 2780 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 16th November 2004
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF VALERIE TULLClaimant-v-
Between
(1)CAMBERWELL GREEN MAGISTRATES' COURTDefendantLAMBETH BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS G HIGGINS (instructed by ASB LAW) appeared for CLAIMANTMR W BEGLAN (instructed by JUDGE & PRIESTLEY SOLICITORS) appeared for DEFENDANT
J U D G M E N TTuesday, 16th November 2004
[1]MR JUSTICE MITTING: Before I proceed to give judgment on the matters that have been argued before me, I order that the interested party, Lambeth Borough Council, be joined as second defendant in these proceedings. I do so for reasons which will become apparent in the course of my judgment on the principal issues, but in a nutshell the case has been argued by Mr Beglan on behalf of Lambeth Borough Council as if Lambeth Borough Council were a party. He has put before me arguments of principle and arguments related to the details of the case which are necessary for me to determine before I determine what, if any, substantial relief should be given on the application for judicial review.[2]This is a claim for judicial review of the decision of the Camberwell Green Magistrates' Court on three separate occasions in 1996 and 1998 to make liability orders in respect of council tax on Flat 1, 23 Trinity Rise, Tulse Hill, and of their decision to refuse, of their own initiative but on the application of the claimant, to revoke those orders. The procedural history of the matter discloses an unhappy, and unhappily costly, picture.[3]It is necessary to set it out in some detail. 23 Trinity Rise was the childhood home of the claimant, Miss Valerie Tull, who is now, I am told, aged 60. She has not lived there for very many years and has certainly not done so as an adult. It appears that on the death of her father she inherited the house. She is certainly registered as the proprietor from 6th January 1972. It is apparent that the house has, for very many years, been split into four flats, each let separately. One of the flats was on the first floor and that is the flat that is the subject of the proceedings that I am about to relate.[4]According to the undisputed evidence of her son, Jonathan Tull, who has the conduct of his mother's affairs in conjunction with a firm of which Dudley Mead is the proprietor, because of her disability (blindness), the flat was let on 5th November 1991 to a Putal Verma for three years. The lease was renewed from 1st November 1994 for a further three years and although Mr Tull is silent on the question, Miss Verma appears to have been permitted to remain in the flat as a rent-paying occupant until she left some time in 1998.[5]Council tax replaced the community charge with effect from 1st April 1993. I am told, and readily accept, that the local authority, Lambeth Borough Council's records for council tax are separate from those for the community charge. Only those relevant to council tax have been produced and those relate only to the period from 1st April 1993 onwards.[6]Both taxes have this in common, that they are payable not by the freehold owner of the occupied property but by the occupiers themselves. Miss Verma, was thus, for the whole of the period until she left, the relevant community charge or council tax payer. The statutory scheme for council tax provides that when a tenanted property is vacated by the tenant the freehold owner becomes liable to meet the council tax. Save for that, it is the occupier alone who is liable.[7]Exactly when and in what circumstances council tax ceased to be paid is not wholly clear from the documents. There is a computer printout which goes back to 1st April 1993 which suggests that for the financial year 1993 to 1994 there were arrears of £199 odd. Council tax payable by the year appears at that time to have been of the order of £600, which suggests, at least according to the records, that some council tax must have been paid during the fiscal year 1993 to 1994. Council tax ceased to be paid some time in 1993 and was not paid until a date late in 1998.[8]According to Mr Tull, the flat was vacated in November 1997 and was empty until August 1998. The claimant has always accepted that she is liable to pay council tax for the periods during which the flat was empty, and no issue has ever arisen about those periods in these proceedings.[9]Mrs Tull asserts, in her witness statement of 25th October 2004, that she has at no time told the council that she was the person liable to pay council tax. She makes that statement because in an exhibit to an undated witness statement, served in these proceedings some time in October 2004, of Mr Sinclair, the Contract Manager (Council Tax) of the London Borough of Lambeth, the council's records show that it received a telephone call on 18th December 1995 from someone noted as "the chargepayer". The note is stored in a computer memory. As printed out it reads, "Account name changed to owner and account T52'ed". That note is dated 30th November 1995. The note for 18th December 1995 is, "Forwarding address is incorrect as chargepayer has not lived at this address for over 20 years." On 19th December 1995 the following note appears, "Forwarding address changed on chargepayer request by phone 18.12.95".[10]Mrs Tull denies that it was she who made that telephone call and says, understandably, that it is illogical that she should have done because she was not the chargepayer. It is impossible at this distance in time for her or for me to state with any confidence exactly what happened or indeed who made the call. The note suggests that it must have been her, or someone on her behalf, in particular when read together with the note of 30th November which notes that the account name is changed, it is logical to infer, from the occupier to the owner. It is not entirely inconsistent with her account of having lived in the house, not the flat, as a child, and that she, or someone speaking on her behalf, should have said that she had not lived there for many years.[11]The following, however, can confidently be discerned from the note: that the person noted in the records as the chargepayer, if Mrs Tull, was not living at the address noted, and had not been living there for over 20 years. Mr Sinclair, in his witness statement, infers that the address referred to is an address other than 23 Trinity Rise. I am unable to share his view. That is an inference which is by no means compelled by the words. The words, if they are the words of Mrs Tull, are far more likely to indicate that she was not living at the address which she had occupied as her childhood home. But be that as it may, the matter remains something of a mystery.[12]I am invited by Mr Beglan to conclude that that evidence should lead to the conclusion that Flat 1, 23 Trinity Rise, was the last known address of Mrs Tull for the purpose of service of documents relating to council tax upon her. He basis that submission upon the wording of the relevant regulations, Council Tax (Administration and Enforcement) Regulations 1992. Regulation 33(1) requires a local authority, described as a billing authority, who intend to apply for a liability order to a Magistrates' Court to:
"... serve on the person against whom the application is to be made a notice ("final notice")... and which is to state every amount in respect of which the authority is to make the application."
[13]Regulation 34(2) requires that an application for a liability order is to be instituted by making a complaint to a

justice of the peace, and requesting:

"... the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."
[14]Regulation 35 requires that a summons issued under summons Regulation 34(2) may be served in one of four ways.

(c) and (d) are relevant:

"(c) by sending it by post to him at his usual or last known place of abode ..." or (d), "by leaving it at, or by sending it by post to him at, an address given by the person as an address at which service of the summons will be accepted."
[15]The council contends that any summons sent by post under paragraph 35 was properly served if sent to Mrs Tull at the first floor flat, 23 Trinity Rise, on the basis, either that it was her last known place of abode, or that it was an address given by her at which service of the summons would be accepted.[16]I will deal with the last proposition first. It is manifest that on no view can the telephone discussion noted in the computer records amount to notification by Mrs Tull of an address at which service of a summons would be accepted by her. The argument has centred upon Regulation 35(2)(c). The argument is that "last known place of abode" has the meaning attributed to it by Judge Toulmin QC in Mersey Docks PropertyHoldings & Ors v Kilgour [2004] EWHC 1638 (TCC), in which in paragraph 63 of his ruling, on a case under the Civil Procedure Rules, Part 6.5(6), he decided:
"It seems to me that the proper construction is last known place of business in the sense of last place of business known to the claimant. This is, in itself, a relatively onerous provision, since in order to acquire the requisite knowledge a party must take reasonable steps to find out at the date of service what is the current place of business or the last place from which the party carried on its business."
[17]The contrary argument was that "last known place of business" meant last place known objectively to those other than the claimant who knew, or thought they knew, the whereabouts of the person to be served. I accept that as an accurate statement of the law and that "last known place of abode" means, under Regulation 35(2)(c), last place of abode known to the council.[18]I accept, also, as does Mr Beglan in his submissions to me, that that interpretation requires the council to take reasonable steps to find out what the place of abode of the person to be served was, so as to furnish it with the requisite knowledge. Knowledge is more than belief, let alone mistaken belief. Knowledge implies some factual sub-stratum at a minimum.[19]I find it impossible to infer from the computer record that Mrs Tull was saying that the first floor flat was her place of abode. Further, there would have been, as at the date of that conversation, and of the service of any of the relevant documents in this case, information available to the council from which it would have been plain that it was not her place of abode. The council were obliged to, and I have no doubt did, keep an electoral register. It is wholly inconceivable that that register would have shown the first floor flat as Mrs Tull's place of abode. If the register was examined at a time when Ms Verma was in residence it surely would have shown that she was the occupier of the flat.[20]It is not suggested that 23 Trinity Rise is of such a size as would have permitted Mrs Tull, jointly to occupy the first floor flat with Miss Verma. Nor can it be suggested that in fact she ever did. A search of the electoral register would, it seems to me, surely have shown that Mrs Tull was not living there.[21]Further, on 25th March 1998, Mr Mead, of the firm King Mead & Co, wrote to the London Borough of Lambeth as managing agent for the flats within the house, notifying the council that Miss Verma had vacated the premises, as he put it, some time between 5th March 1998 and 15th March 1998, not the same date as that given by Mr Tull, but a date well within the compass of the events with which I am concerned. The agents requested that all correspondence should be forwarded to their office. That letter, amounts, in my view, to express notice to the council that the first floor flat was not, as at 25th March 1998, and for a significant period before, occupied by Mrs Tull.[22]In short, on the evidence which I have seen, by no stretch of the imagination could it be sensibly asserted that she was the last known occupier of the first floor flat, whether to the council or anybody else. On any reasonable view of the limited information available to the council, the first floor flat was not, at any relevant time, the last known place of abode of Mrs Tull.[23]It therefore follows that the summonses which were served in her name at the first floor flat, 23 Trinity Rise, upon which the liability orders of 18th July 1996, 19th February 1998 and 6th August 1998 were founded, were not properly served upon Mrs Tull. The consequence is that the orders should not have been made.[24]These were civil proceedings, but they were civil proceedings to which no comprehensive code, such as the Civil Procedure Rules 1998, applied. Had the Civil Procedure Rules applied, then it would have been a simple matter to set aside the liability orders under CPR Part 13. Indeed, because the orders were not properly served upon the person against whom they were made, they would have been set aside as of right. Further, once the council had good reason to believe that they had not been served, it would have been obliged, under Part 13.5(2) itself to apply to have the orders set aside. Of course, the CPR did not apply to these proceedings.[25]There is in fact no procedure within the rules governing liability orders for setting aside liability orders obtained on summonses which have not been validly served. The judges of this court have, to a limited extent, and recently, stepped in to fill the gap. In Liverpool City Council vPleroma Distribution Limited [2002] EWHC 2467 Admin, Maurice Kay J, as he then was, held that the Magistrates' Court had an inherent power to set aside orders made when procedural errors had occurred. It had been submitted to him that a Magistrates' Court only had such a power when it had acted unlawfully or in excess of its jurisdiction. He noted in a case in which a letter requesting an adjournment for good reason had gone astray that:
"The Justices had the competence either to grant or to refuse an adjournment. It was a matter of discretion, to be exercised judicially. However, the reality is that on 21 December they did not purport to exercise that discretion one way or the other in respect of the current demand because they did not know that Pleroma was seeking an adjournment of it. In such a situation, does it follow that they exhausted their jurisdiction upon the pronouncement of the liability order and were powerless to reopen the matter once the true position was made known to them? In my judgment it does not."
He went on to give a common sense example which illustrated his conclusion.[26]In paragraph 11 of his judgment he said:
"Although they had not purported to do something inherently unlawful of the type illustrated by the authorities to which I have referred, they were entitled to reopen the matter so as to address a discretion which, at the time, they had not realised was the subject of a specific request."
[27]Stanley Burnton J in R (on the application of Brighton &Hove City Council) v Brighton & Hove Justices & MichaelHamdan [2004] EWHC Admin, a decision of 29th July 2004, considered and applied Kay J's decision. He concluded that:
"In my judgment, in general a magistrates' court should not set aside a liability order unless it is satisfied, in addition to there being a genuine and arguable dispute as to the defendant's liability for the rates in question, that: (a) the order was made as a result of a substantial procedural error, defect or mishap; and (b) the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made or has notice that an order may have been made."
No issue arises as to the second of his requirements because it is accepted that as soon as Mrs Tull became aware of the existence of the liability orders in late 2003 she made appropriate application to the justices.[28]I have already indicated that I find in this case that a substantial procedural error did occur in relation to each of the three liability notices. Following the two judgments to which I have referred, the justices therefore had an inherent power to set aside the orders that they had made. They declined to do so. They did so, initially, on the basis that a factual situation of the kind that existed in Liverpool City Council v Pleroma did not exist in this case, as of course it did not, and, subsequently, on the basis that I find difficult to understand from the correspondence from their clerk.[29]The council did not become directly involved in these proceedings until they were notified as an interested party, and, indeed, strictly did not actively become a party to these proceedings until I made an order joining them as the defendant at the start of this judgment, but they were notified of the existence of the proceedings and reacted reasonably promptly by indicating that they accepted, or at least did not dispute, the assertions made on behalf of Mr Tull that the flat had been tenanted for most of the time and that she was only liable for council tax for the short periods when it was not tenanted. There has, as I have already indicated, never been any dispute between the council and Mrs Tull about those two periods.[30]The council initially indicated that it was content not to oppose the application to the justices to set aside the liability orders. Only when this matter was due to be heard on 6th October did they indicate that the orders were, in their view, in fact properly made because Mrs Tull had been properly served, even though the proceedings had not come to her notice. I have already dealt with that question and found against them.[31]Mr Beglan submitted to me that I should not make the order sought by the claimant, namely an order quashing the three liability orders for two reasons. First, because the council accepted that Mrs Tull was only liable for the short periods when the flat was vacated the issue is academic. Secondly, because, he submits, those advising Mrs Tull did not make it plain to me when, as it happens, I granted permission on the papers, that the council had conceded that Mrs Tull was not liable save for those short periods.[32]As to the latter point, Miss Higgins, for Mrs Tull, concedes that I should have been told and that I was not told by oversight. I accept that there was no sinister motive in the failure to notify me and that what occurred was an oversight. I see no reason, for that reason, to deprive Mrs Tull of the relief which I would otherwise gladly grant her.[33]The more substantial issue is the question as to whether or not these proceedings are academic. In my view they are not academic. Liability orders are, in effect, civil orders for payment by a court. They can ultimately be enforced by a sanction of imprisonment if unpaid, and by various other methods of enforcement before that ultimate step is reached. No citizen should be made the subject of orders to which, if they had been properly informed at the time, they would have objected and would have objected successfully. The premise upon which this case has been argued is that at no stage would Mrs Tull have allowed a liability which she truly owed to go unpaid.[34]In my view, a citizen is entitled, subject to the usual Administrative Court requirements as to promptitude and openness, to have set aside civil orders, such as liability orders, which adversely effect them, even though the person who has obtained the benefit of the order, the council, is willing to waive enforcement of them. I therefore make the order sought and quash the three liability orders.[35]Miss Higgins applies for costs. First of all she applies for costs against the justices. She acknowledges that the principles upon which I must consider an order for costs against the justices are authoritatively set out in R(on theapplication of Davies(No 2)) v Deputy Birmingham Coroner [2004] EWCA Civ 207, reported in amongst other places [2004] 3 AER 543. Brooke LJ, setting out the principles now to be applied in paragraph 47 said:
"The answers to the questions I posed ... are: "(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings; "(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event; "(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application; (iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs."
[36]This is not a case in which the justices have participated actively. They filed an acknowledgment of service. The acknowledgment of service annexed to it a letter which had been sent in response to the claimant's preaction protocol letter in which various assertions were made, not all of them right, about the power of the justices to set aside orders and whether or not the justices would do so. In a nutshell, they declined to set aside the liability orders.[37]But, notwithstanding that, they have not, as I have indicated, played any active part in the proceedings. Therefore, applying Brooke LJ's observations, I cannot make an order for costs against the justices under his proposition (iv). The only ground upon which I could make an order for costs against the justices would be that identified in (i), namely that they had neglected to sign a consent order disposing of the proceedings and had done so unreasonably.[38]While I do not accept that the justices' arguments in the annex to their acknowledgment of service are right, I, nonetheless, am not of the view that they acted unreasonably in refusing to sign the consent order that was proffered to them in the course of these proceedings. They may well have acted unreasonably if that consent order had had upon it the signature of both the claimant and the council.[39]What should have happened, in my view, and what should happen in future cases where liability orders are obtained which should not have been because summonses were not properly served, is as follows. The claimant should notify both the justices and the council that the summonses were not properly served. That was done in this case. The council should then inform itself as to whether or not the claimant's assertion that the summonses were not properly served was true or not. A degree of cooperation would clearly be required between the claimant and the council. If in a simple case such as this the council accepts that the person upon whom the summonses were served, and in respect of whom liability orders were made, was not properly served and is not liable, then the council should so indicate in correspondence to that person. Where that person is not content to accept the assurance of the council that the liability orders will not be enforced, and wishes to have them set aside, then the council should join in a request to the magistrates to set aside the orders.[40]If that practice is adopted in the future then the considerable costs of this litigation would be avoided. Further, if the magistrates refused, in the teeth of a joint request, to set aside liability orders, it would be straightforward for a judge sitting in this court to reach the conclusion that they had refused unreasonably.[41]That did not happen in this case. It is not a criticism of the council that it did not happen because the procedure, as I have indicated, is judge made.[42]The possibility of setting aside liability orders where there has been a significant procedural error has only very recently been established. The route by which such orders should be set aside so as to avoid the expense of litigation has only, as far as I know, been identified by me in the course of this judgment.[43]There can, therefore, be no reasonable criticism of the council for failing to do that which it had no reason to think it should do. If the matter had stood as it was at the start of these proceedings with the council saying simply, "We agree that Mrs Tull is not liable for council tax save when the flat was vacant, and we accept her dates, and we do not oppose the setting aside of the liability orders", then no order for costs could reasonably have been made by me against the council. But what has happened is not that. The council has intervened in these proceedings, as an interested party, to argue that the summonses upon which the liability orders were founded were properly served and has done so on principled grounds by reference to facts that it has researched and put before me. It has lost that argument.[44]Further, the difficulties in which Mrs Tull has found herself have arisen as a result of a mistake originally made by the council as to who was liable to pay the council tax.[45]In those circumstances it seems to me that, exceptionally, it is right that the council should pay some, at least, of the costs of this application. I have not yet heard submissions on what proportion between nought and 100 per cent should be borne by the council, only submissions on the principle of whether or not the council should be required to pay any of the costs. I make that order in the knowledge that the council, until I joined them, were not party to these proceedings, and that I have joined them to permit them to advance their arguments and to do so at risk as to costs.[46]Mr Beglan advanced his arguments, and Mr Sinclair put in his witness statement in the knowledge that in so doing the council might be at such risk. In the course of his submissions I made that point explicitly to him and he continued. It is not a criticism of him or of the council that he did so. There was a point of principle to resolve here and I have resolved it, albeit against them. But it does seem to me that in a case in which the need for the litigation at all arose because of the council's original mistake, and because it has argued and lost upon a significant question of principle, it is right that it should bear at least some of the costs of so doing. For those reasons I agree in principle that an order for costs of some kind should be made.[47]Now, Miss Higgins, this is, in a sense, a novel point against the council. They have perhaps unwisely chosen to argue the underlying propriety of service of the summons and have lost on that and should pay the costs of so doing, but why should they pay the whole costs?[48]MISS HIGGINS: I think it is difficult for me to say that they should pay 100 per cent. Your Lordship has indicated that a proportion would be more appropriate and I can only agree with that.

MR JUSTICE MITTING: What figure do you urge upon me?

[50]MISS HIGGINS: In the light of your Lordship's judgment I would urge a high figure. Your Lordship has found that the whole problem did arise because of a mistake by the council in the initial liability orders, and that is the principal reason then why these proceedings have been necessary. That of itself would, in my submission, justify a proportion well in excess of 50 per cent. Added to that is the point that they have chosen to enter into the arena -- argue the point about service, and that, in my submission, justifies an additional proportion. May I suggest 75 per cent?

MR JUSTICE MITTING: Mr Beglan.

[52]MR BEGLAN: My Lord, if I have your Lordship's judgment correctly, your Lordship said if the matter had stood as it was, before we entered into the fray, as it were, the council saying that they would agree that Mrs Tull was not liable for the council tax and accept the dates not opposed, then no order for costs could reasonably have been made by me. If that is the position from which your Lordship starts, then, as I indicated earlier, we only entered into the fray after the letter of 1st October, the detailed letter I took your Lordship to, in fact at the hearing of 6th October.[53]My Lord, I have the schedule that was provided for that hearing on 6th October, and also the schedule in respect of today's hearing. The difference between those two schedules is, it seems to me, about £2,600. Today's schedule is 14,277, and the schedule for the previous hearing was 11,691. There has already been an assessment in the sum of 1,750 or thereabouts in respect of --[54]MR JUSTICE MITTING: You urged me not to undertake the assessment of costs on the rough and ready basis, and I agree with you, I do not think it is right that I should make an assessment on the figures that I have been given today. That needs to be gone into.[55]MR BEGLAN: My Lord, that may be. The reason that I take these two schedules is because if one subtracts one figure from the other one can see the additional costs which have been incurred since the last hearing which was the stage at which we entered into the fray. Your Lordship's judgment is that apart from us doing that it would not have been right to make an order for costs against us. The logical corollary of that, must be, in my submission, that we should only be liable for the costs including the hearing of 6th October and the costs following that.[56]MR JUSTICE MITTING: No, the hearing on 6th October included preparation for and the brief fee for the argument of all matters of substance. I have heard all of that, I have spent a fair amount of time today listening to both of you about it. I cannot really see there is any good reason why the council, on the view I have formed, should not pay the cost of that.[57]MR BEGLAN: No, my Lord, I agree, on your Lordship's view. I say that the costs should include the hearing of 6th October and all of the costs following.[58]MR JUSTICE MITTING: But to say, well, that is only £2,000 because when you look at the additional costs they are only that, is not quite the right way of approaching it. I am minded to make a percentage order and to order a detailed assessment unless you dissuade me to the contrary.[59]MR BEGLAN: My Lord, the approach that I have adopted, I would respectfully submit, is a perfectly accurate way of measuring the way that the costs have changed between the last hearing and immediately before the last hearing. On your Lordship's judgment the approach that the interested party took was unobjectionable in terms of costs, and we know what has been incurred by way of costs since that day. It can only be the costs of that hearing and the difference in the two costs schedules given that one --[60]MR JUSTICE MITTING: That is completely unrealistic, given that the brief fee is paid for the principal hearing. The hearing was aborted last time round because you put in late evidence.[61]MR BEGLAN: Yes, my Lord, I accept that should be payable in any event.[62]MR JUSTICE MITTING: Yes. How then can you say it is only the difference between the two, the £2,000?[63]MR BEGLAN: My Lord, the brief fee for the hearing must either be attributable to the last hearing or to this hearing.[64]MR JUSTICE MITTING: On a detailed assessment a costs judge is going to say this hearing is the expensive one, not the aborted one on the 6th.[65]MR BEGLAN: Yes, and I concede that the claimant ought to have the costs of the expensive hearing, and in fact the costs of the less expensive hearing.

MR JUSTICE MITTING: Yes.

[67]MR BEGLAN: What I do not concede is that on your Lordship's judgment, which in my submission is clear in its terms, they ought to be entitled, as a matter of principle, to any of the costs that were incurred prior to 6th October apart from the brief fee.

MR JUSTICE MITTING: And preparation fee.

[69]MR BEGLAN: And preparation, yes. The preparation --

MR JUSTICE MITTING: So where does that get us to in broadbrush percentage terms?

[71]MR BEGLAN: Well, my Lord, in percentage terms I suspect it is 25 per cent of the costs, but it would be perfectly open to your Lordship to say that they should have the costs of, and including preparation of, the last hearing and all of the costs since that date. That can be worked out, readily in my submission, on the detailed assessment.

MR JUSTICE MITTING: So you do not urge a percentage approach, you say a topic approach effectively?

[73]MR BEGLAN: Yes, or a date of time. I do that having regard to your Lordship's judgment, and in particular the conclusion that if we had arrived on 6th October and had just addressed the issue of costs and left the substance alone, then on your Lordship's judgment it would not have been correct to make a costs order against us.[74]MR JUSTICE MITTING: Or had not turned up at all but had sent in a letter saying you had consented or did not oppose.[75]MR BEGLAN: Yes.

MR JUSTICE MITTING: The difficulty with your argument is that you have blown both hot and cold.

[77]MR BEGLAN: Since 6th October I accept that, and I have to accept it, but what I do not accept, and what is clear from the letter of 1st October, is that up until 6th October the council was maintaining a view of non-opposition, and that had occurred throughout the proceedings.[78]MR JUSTICE MITTING: Right. We are encouraged not to make staged orders, are we not, because it makes life difficult for the assessing master, but to do it in percentage terms?[79]MR BEGLAN: My Lord, I can see how in some circumstances it might make it difficult. I am open to observations from my learned friend, but I cannot see in this particular case how, if your Lordship were to say that the claimant ought to have all the costs after 6th October and also the costs that were incurred in preparing for the hearing of 6th October, that would place the costs judge in any particular difficulty.[80]MR JUSTICE MITTING: Right. Thank you. Miss Higgins.[81]MISS HIGGINS: May I just take instructions on Mr Beglan's last comments?

MR JUSTICE MITTING: Yes.

[83]MISS HIGGINS: I have taken instructions on that last point, my Lord, and my solicitor points out that it is going to be very difficult to work out what precisely should be attributed to the preparation for 6th October and what should not.[84]MR JUSTICE MITTING: I quite agree. I think I will be setting the costs judge an impossible task if I were to do that, or at any rate a very difficult task.[85]MISS HIGGINS: And no doubt a very lengthy and expensive task.[86]MR JUSTICE MITTING: Quite, and whatever else I do, I do not want to add further to already expensive litigation. I think I have got to do it by percentage order. What I would like is your broadbrush estimate of the cost of doing that which I think you should have, namely, the cost of getting this case ready to be heard and of hearing it on both of the days on which it has been listed for hearing.[87]MISS HIGGINS: My Lord, would your Lordship grant us a short while to create that broadbrush estimate?[88]MR JUSTICE MITTING: Of course I will, and Mr Beglan, I would like, if you feel able to contribute to the discussion of percentages, for you to reflect upon it too.[89]MR BEGLAN: Yes, my Lord.

MR JUSTICE MITTING: How long do you want?

[91]MISS HIGGINS: Could I ask for 15 minutes, my Lord?[92]MR JUSTICE MITTING: Certainly. I will hear you again at 4.30.[93]MISS HIGGINS: I am grateful, my Lord. (Short adjournment)

MR JUSTICE MITTING: Miss Higgins?

[95]MISS HIGGINS: My Lord, this has been a difficult exercise, one that is impossible to do with any degree of accuracy, but my solicitor and I together have tried to do the best we can. Comparing the original costs schedule for 6th October with the costs schedule for today, there is a difference of £2,586.26. So those costs, in my submission, should be included in any event.[96]Turning to the costs that were on the original schedule for the hearing on 6th October. What we have done is been through each item on those, crossed out the ones which are not attributable to the preparation of the trial, which includes, for example, everything by Rex Cowell who was involved only at a very early stage. For work done by Paul Lattin, who is behind me now, who has done the majority of the work, it has been particularly difficult to work out what is attributable to the trial and what is not. What we have done there is simply made a best guess of knocking off a proportion which varies according to the type of work. Doing that we have come up with a total of £5,795.90 attributable to preparing for the hearing of 6th October.

MR JUSTICE MITTING: So in round terms a little over half?

[98]MISS HIGGINS: Yes, my Lord.[99]MR JUSTICE MITTING: Thank you. Are you inviting me in fact to assess costs now in those sums, or simply to use that as a base for referring it to the costs judge with a percentage?[100]MISS HIGGINS: My inclination would be to deal with this now and not incur yet further proceedings with further costs but --[101]MR JUSTICE MITTING: Contrary to the view I expressed I think that might be the most economical method of doing it.[102]MISS HIGGINS: That would be my submission but I understand that Mr Beglan opposes that.[103]MR JUSTICE MITTING: Right. Mr Beglan.[104]MR BEGLAN: My Lord, in respect of the 2,586 I am prepared, on a broadbrush approach, to accept that. Your Lordship will also bear in mind that £1,750, which is not included in the 5,795 was ordered in respect of the wasted costs of the last hearing, and that was envisaged to cover all of the costs that were thrown away at that hearing.

MR JUSTICE MITTING: So the 5,795 is on top of the 1,500 odd?

[106]MR BEGLAN: Absolutely, 1,750. My Lord, going through the schedule and having a look at what is perhaps most easy to refer to the court hearings themselves rather than other steps in the proceedings, if we look at the third page, Paul Lattin, who we hear has done most of the work, I would submit that a fair approach might be to include all of the drafting of the statements, even though a number of statements, of course, were dealt with prior to the change of tack on 6th October, but for the sake of argument include the trial bundle, because that is obviously one that should go in, include the attendances at the hearing on 16th November, which add up to about £1,000 on a rough and ready measure, as do the items that I suggested on the earlier page, they are about £1,000, and include the bottom three items of the disbursements, about 1,750. But I understand that part of the fees that are claimed by my learned friend, or claimed on her behalf within this schedule -- that a small fraction of it may be referrable to sums that are already the subject of the 1,750. I do not know about that.[107]But I would adopt that as a broad measure. As my learned friend says, it is a difficult exercise to get involved with, but if we use those figures, and bearing in mind that £1,750 has already been the subject of the costs order then the residual figure is close to 25 to 35 per cent of the cost. I invite your Lordship to --

MR JUSTICE MITTING: How do you get that?

[109]MR BEGLAN: My Lord, by looking at 2,586 plus the sums that I -- well, the difficulty is that 2,586 will include some of the items that I have referred to in the schedule. If one totals together all of the matters that I say one could take into account on the schedule, then there is a total --

MR JUSTICE MITTING: What is your total figure on what you concede is --

[111]MR BEGLAN: 3,750, on a broad approach, and one adds to that the 1,750 that has already been allowed. If one takes the total that is being claimed as being between, just for the purposes of rough arithmetic, between £14,000 and £15,000, then you are getting towards a third of the costs.

MR JUSTICE MITTING: Yes.

[113]MR BEGLAN: So, my Lord, I invite you to assess them, again having regard to what happened in May, at between 25 per cent and 35 per cent.[114]MISS HIGGINS: Right. One point of information, my Lord. I think my learned friend and I might be on cross wires on the subject of VAT. My figure included them and it seems that his do not.[115]MR JUSTICE MITTING: I am afraid, Miss Higgins, that I am persuaded by having listened to both of you that I do not have, and am unlikely to have, within reasonable compass today, enough information to assess this bill myself. I can therefore only order a proportion of costs to be paid. I order that the defendant pay 50 per cent of the assessed costs of the whole case plus the sum ordered to be paid in respect of the hearing on 6th October which has already been assessed.[116]Any other applications?[117]MR BEGLAN: No, my Lord.[118]MISS HIGGINS: No, my Lord.

Cited in 3 later judgments