Business Environment Bow Lane Ltd v Deanwater Estates Ltd: ChD 31 Jul 2009

The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that they were not, as it turned out, reasonably incurred because they had been incurred in an action that sought an exaggerated sum which should never have been claimed?’ The landlord had pursued an action for very substantial dilapidations, but had eventually recovered a comparatively tiny sum. The court had found that the landlord knew its claim was unsubstainable. In the course of proceedings costs orders had been made against the tenant. The costs master had then reduced the awards of interim costs to the climant to nil. The claimant appealed.
Held: The court should give ‘proper effect to the order of the Court of Appeal, which involves construing it in its proper context. That is the proposition which underlies Mr Hutton’s constant refrain to the effect that that order is self-contained (my expression, not his, but which he accepted was the gist of what he was saying). The citations from the modern Court of Appeal cases extracted above, and Cope, make it clear that the important thing to do is to construe the order. If the effect of the order is that it was intended to take effect whatever the outcome of the action, then the Master’s order was wrong. He should have assessed the costs of the issue, by reference to their reasonableness and propriety within the issue, but not by reference to the ultimate fate of the action, no matter how misconceived it might have been. It is the duty of the assessing tribunal to carry out the assessment which the previous court has directed it to carry out.’

Mann J
[2009] EWHC 2014 (Ch), [2009] 45 EG 106
England and Wales
CitedBooth v Britannia Hotels Ltd CA 26-Mar-2002
The claimant had made a large personal injury claim (pounds 617,000) but was forced to reduce it to all but nothing when video evidence was provided shortly before trial. She accepted a payment in of pounds 2,500 and other benefits worth just over . .
CitedRe U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
CitedAaron v Shelton 2004
A party wishing to raise a matter concerning the conduct of the opposing party, either before or during litigation, was under a duty to raise it before the judge making the costs order, was too broadly stated. . .
CitedNorthstar Systems Ltd and others v Fielding and others; Ultraframe (UK) Ltd and Others v Fielding and Others (No 2) CA 6-Dec-2006
The parties had disputed ownership of intellectual property rights. The court had found certain parties dishonest. The judge had found the successful defendants honest and adjusted the costs order in their favour. The claimants appealed.
Held: . .
CitedCope v United Dairies 1963
Megaw LJ said: ‘Mr Hames agreed that the taxing master could not properly refuse to carry out an order for taxation, in whole or in part, because he considered it to be wrong or ultra vires, and the same applies to a court on review. With that . .
CitedKoshy v Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh CA 24-Nov-2003
One party had been ordered to pay the costs of an unsuccessful attempt to discharge injunctions and strike out the action. The applications failed (badly) and the costs were ordered to be taxed and paid forthwith. Later there was a trial, and the . .
CitedLahey v Pirelli Tyres Ltd CA 14-Feb-2007
The claimant made a large claim for personal injury, but settled for a very small amount, and his costs. The costs judge rejected a submission that he could start by deciding that only 25% of the costs ultimately assessed as being payable.
See AlsoBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd CA 27-Jun-2007
Enforcement of repairing obligations in lease after assignments, and the use of collateral contracts. Sir Andrew Morritt C said: ‘The law relating to collateral contracts is well-established but in connection with sales or leases of land needs to be . .
See AlsoBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd TCC 31-Jul-2008
The court considered liability under a repairing covenant at the termination of a lease. . .

Lists of cited by and citing cases may be incomplete.


Updated: 10 November 2021; Ref: scu.368636