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Case No: B3/2000/0575/CCRTF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE KRIKLER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 21st November 2000
B e f o r e :
LORD JUSTICE HENRY
and
MR JUSTICE WALL
- - - - - - - - - - - - - - - - - - - - -
|
RAPPAPORT
& ANOTHER
|
Appellant
|
|
-
and -
|
|
|
AROND
FINANCE LIMITED
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr K E King (instructed by Messrs Arbeid Goldstein & Oshry) for the
Appellants
Mr I Krolick (instructed by Messrs Cawdery Kaye Fireman & Taylor)
for the Respondent
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
As Approved by the Court
Crown Copyright ©
MR JUSTICE WALL:
1. On 14 March 2000, His Honour Judge Krikler, sitting in the Willesden County
Court made an order for possession of premises at 17 Harlesden Gardens London
NW10 (the premises) in favour of Zafrir Rappaport and Shmuel Fischer (the
claimants) against Arond Finance Limited (the defendant). That order, which
wrongly identifies the judge as "District Judge" Krikler, reads as follows:
-
"Upon hearing counsel for the claimant (sic) and the defendant in person
The court has decided that you should give the claimant possession of 17
Harlesden Gardens, London NW10.
This means you must leave the property on 11 April 2000
There be no order for costs.
If you do not leave the property and pay the money owed by the dates given,
the claimant can ask the court bailiff to evict you and remove your goods to
obtain payment.
This is called "enforcing the order and money judgment"
Payments should be made to the claimant at the place where you would normally
pay your rent. If you need more information about making payments you should
contact the claimant. The court cannot accept any payments.
Dated 14 March 2000."
2. On 30 March 2000, HH Judge Krikler made an order in the same proceedings
expressed in the following terms: -
"Upon reading the claimant's application
IT IS ORDERED THAT
Permission to appeal be refused."
3. It is apparent from the documentation in the appeal bundle that the
"application" referred to in the order of 30 March 2000 was in fact a letter
from the claimants' solicitors addressed to "the judge's clerk" dated 16 March,
in which they pointed out that when making the possession order on 14 March,
the judge had made "no order as to costs". It was said that this order was
made "without full submissions being made by counsel" and that it "did not
take account of the complex background of this action". The letter
continues:-
"In our view it would be appropriate for the matter to be re-listed before the
Learned Judge in order that the question of costs can be fully considered.
Also, in our view, it would have been proper at the time for the judge to have
made a monetary order for the arrears and an order for payment out of the
monies presently held in court.
In the circumstances we would ask that the matter be re-listed before the Judge
for submissions to be made. And we hope that this letter will be treated as an
application. If the Court requires a formal application, kindly let us know.
Please do not draw up the order of the 14th March until you refer
back to us."
4. It appears that the order made by the judge on 30 March 2000 was the
response to this letter. The matter was not re-listed; there was no hearing,
and the order was made without an attendance on either side.
5. The claimants appeal, with permission granted on 22 June 2000 by the Rt Hon
Sir Anthony McCowan, against both orders. In relation to the order made on 14
March 2000, the appeal is specifically directed against the judge's refusal to
make an order for costs in the claimants' favour. In relation to the order
made on 30 March 2000 the appeal is directed to the judge's refusal to re-visit
the order made on 14 March, and in particular his alleged failure (1) to make a
money judgment for arrears of rent relating to the premises which the claimants
asserted were due and owing; and (2) to make an order for the payment out of
money in court.
6. The proceedings in the court below arose out of an agreement between the
claimants and the defendant whereby the claimants let the premises to the
defendant under a tenancy agreement dated 7 July 1997 for a term certain of 4
years from that date at a monthly rental of £1,200 per month. The
premises were in multi-occupation, and it was an express term of the agreement
that the defendant was not to use the premises other than for the purpose of a
dwelling house in multi-occupation. The claimants' obligations under the
agreement included keeping the premises in structural repair during the
tenancy, and the maintenance of and payment for a building insurance policy.
7. The claimants' case was that the Defendant fell into arrears of rent, and
on 27 November 1998 they issued proceedings in the Willesden County Court for
possession of the premises and recovery of unpaid rent which they asserted
amounted to £8,400 at that date.
8. On 27 January 1999, the defendant filed a defence and counterclaim,
alleging firstly that the claimants (who were resident in Israel) were in
breach of section 48 of the Landlord and Tenant Act 1987 by failing to furnish
the defendant with an address in England and Wales at which notices may be
served on them by the defendant with the consequence that any rent otherwise
due to the claimants was to be treated for all purposes as not being due.
9. Secondly, whilst admitting that it had not paid the rent due from 7 May
1998, the defendant alleged that the claimants had failed to keep the premises
insured and in structural repair, and sought to set off against any rent due
sums which it had paid for necessary works (said to be £3,870) and for
insurance (said to be £1,679.56).
10. The defence also alleged breach of a collateral oral agreement that the
claimants, being resident abroad, would deduct income tax from the rental
payments and would both indemnify the defendant against any liability for
withholding tax, and would obtain and produce to the defendant a certificate of
exemption issued by the Inland Revenue. The sum claimed under this head was
£5,184.
11. In addition to its defence of set-off, the defendant also counterclaimed
for damages based on its incapacity to sublet the premises due to their
condition, and the claimants' alleged breaches of their covenant to repair.
12. The claimants filed a reply and defence to counterclaim on 4 March 1999.
The breach of section 48 of the 1987 Act was denied; the claimants denied they
were in breach of their obligations under the agreement, and also denied the
existence of any collateral agreement in relation to tax.
13. The hearing before the judge on 14 March 2000 was not was not the
substantive hearing of the claim and the counterclaim. Indeed, there is some
doubt as to precisely what applications the judge had before him on that date.
14. The claimants' case in summary is that the judge had before him on 14
March 2000 two separate matters. The first in time was an appeal by the
defendant against an order made on 14 January 2000 by deputy district judge
Colquohon refusing to vary or set aside an "unless" order made by district
judge Dabezies on 2 November ordering the defendant to pay £6000 into
court pursuant to a previous order made on 10 June 1999, in default of which
the defendant was to be debarred from defending "and the claimant be at liberty
to enter judgment". The second was the claimants' application for judgment to
be entered and for possession of the premises to be granted to them on the
grounds (a) that the defendant had failed to comply with the order dated 10
June 1999 to pay money into court and (b) because its application to vary that
order had been dismissed on 14 January 2000 by the deputy district judge.
15. The claimants' case, therefore, is that by granting the order for
possession the judge must be treated (1) as having dismissed the Defendant's
appeal from the order of the deputy district judge and (2) as having been
satisfied that the defendant had no defence to the claim for arrears of rent.
There should, accordingly, they argue, have been a judgment for the sum claimed
by the claimants, and payment out to the claimants of money which had been paid
into court. Having succeeded in their claim they should also, it is argued,
have obtained an order for their costs.
16. It is, I think, already apparent that what should be a straightforward
issue is complicated by a number of factors. Firstly, apart from the standard
rubric in the order of 14 March 2000, neither of the judge's two orders under
appeal makes any reference to the claimants' money claim, or to the fate of the
defendant's appeal from deputy district judge Colquohon's order of 14 January
2000. Secondly, the judge does not appear to have given a judgment or reasons
for making either order. Thirdly, we have no transcript of the hearing before
the judge on 14 March.
17. The appeal thus reaches this court is a highly unsatisfactory state, and
one in which this court is being asked, in effect, to draw a number of
inferences from what may or may not have occurred below.
18. The appeal also demonstrates a number of procedural deficiencies in the
conduct of the proceedings in the court below which are, once again,
unsatisfactory.
19. In order to attempt to straighten out the tangle, therefore, and to
attempt to understand what took place in the court below, it is, in my
judgment, necessary to examine in detail both the history or the proceedings
and the documentary evidence which is available to us.
20. I have already summarised the pleadings. On 4 February 1999,
Judge Krikler gave directions by consent, requiring disclosure of documents 21
days after filing of a reply and defence to counterclaim; exchange of witness
statements 28 days after disclosure, and exchange of experts' reports 28 days
thereafter.
21. On 5 February 1999, the defendant applied for security for costs, on the
ground that both claimants were ordinarily resident out of the jurisdiction.
That application was, we are told, supported by affidavit sworn on 3 February
1999 by Anthony Newman, one of the defendant's directors. The return date on
the application was 10 June 1999.
22. On 22 February 1999, for reasons which are wholly unclear, the claimants
issued a summons in a separate action numbered WI921013, claiming possession of
the same property on the grounds of arrears of rent, then said to be
£13,200. The return date for this summons was 12 March 1999.
The defendant denies that this summons was served on it.
23. On 4 March 1999, the claimants served and filed their reply and defence to
counterclaim in the first action. On 12 March 1999 the proceedings in action
WI921013 came before His Honour Judge Sich. The defendant did not appear, but
was nonetheless ordered to serve a defence within 14 days and on the defence
being filed, the action was to be consolidated with the first action. The
order was drawn up on 15 March 1999.
24. On 25 March 1999 the exchange of lists of documents pursuant to Judge
Krikler's order of 4 February was due. We were told, however, that no lists
were produced on either side, and that thereafter none of the directions given
on 4 February 1999 was complied with, although the defendant did obtain and
disclose its expert's report on the condition of the property, which is dated 3
December 1999.
25. On 29 March 1999, the defendant applied for an order that the order of 12
March 1999 in action WI921013 made by Judge Sich be set aside; that the
proceedings be struck out, and that pending the hearing of the application the
action be stayed. The grounds for setting aside the order were:
a) The defendant was not present or represented;
b) It had not been served with the proceedings, namely the summons in action
WI921013;
c) There was a material irregularity in that there was a failure to provide at
least 21 days between the issue of the summons and the return date;
d) The solicitors acting for the defendant in action WI827026 had not been
served with the notice of application.
26. The hearing for this application was fixed for 4 May 1999. On
14 April 1999, the claimants issued a notice of application in action WI827026
seeking an order that the defendant pay the arrears of rent and the current
rent either to their solicitors or into court, and for the costs of the
application. No grounds were indicated in the notice of application, and it
does not appear that there was any supporting affidavit or statement, or that
the application was the subject of any adjudication, although the claimants'
solicitors requested the Court to list the application before 4 May 1999.
27. On 4 May 1999, His Honour Judge Copley heard the defendant's application
in action WI921013. He directed that it be adjourned to 19 June 1999, and
ordered that the proceedings be stayed in the meantime. He reserved the
costs.
28. On 10 June 1999, the defendant's application for security for costs in
action WI827026 came before Mr. Assistant Recorder Morris, who directed
that the defendant pay into court by 8 July 1999 the sum of £15,600, and
in addition the rent due from 7 June 1999 until the trial of the action or
further order, the money to be held in court as security for the defendant's
costs. He also ordered that the rent due on 7 June 1999 be paid by 17 June
1999.
29. On the same day, 10 June 1999, Judge Krikler heard the defendant's
application dated 20 March 1999 to strike out the second action WI921013. The
order as drawn by the Court records hearing counsel for both parties and reads
as follows: "IT IS ORDERED THAT Dismissed. No order as to costs". It is the
defendant's contention that this order is to be interpreted to mean that the
claimants' second summons was struck out and the action dismissed. There are
certainly are no further applications in the second action WI921013, and all
the applications and orders which follow are in respect of action WI827026.
30. On 8 July 1999, the defendant paid the sum of £15,600 into court
pursuant to the order of 10 June made by assistant recorder Morris. We were
told that on 29 July 1999 the court appears mistakenly to have paid the money
out to the claimants' solicitors. In early November 1999 the defendant's then
solicitors discovered that the money had been paid out and requested the
claimants' solicitors to return it. They did so, but not, we were told, until
after an order by a district judge on 15 November 1999 directing them to do so.
Once again, however, this is not a document in the papers before this court.
31. On 8 October 1999, the claimants applied for the issue of a notice of
application for an order that the defendant be debarred from defending the
action, and that judgment be entered for the claimants against the defendant on
the grounds that the defendant was in breach of the order of 10 June 1999 made
by assistant recorder Morris, in that it had failed to make the monthly
payments into court from 7 August 1999. We were told, however, that no notice
of application was served on the defendant, although the application came
before district judge Dabezies on 2 November 1999.
32. There appear to be two orders made by the district judge in relation to
this application. The first is stated to be made on 2 November 1999 and drawn
up on 11 November 1999. The second is also stated as being made on 2 November
1999 but was not drawn until 12 November. The first records that it was made
"upon reading the claimants' letter and the defendant not appearing". The
second records that it was made "upon reading the claimants' application dated
8 October 1999".
33. Both orders state that unless the defendant paid into Court by 4pm on 19
November 1999 the sum of £6,000, it was to be debarred from defending the
action, and the claimants were to be at liberty to enter judgment. Both orders
gave the defendant until 4pm on 19 November 1999 to apply to vary or set aside
the order. The second identifies the sum of £6000 as comprising monthly
payments due on 7 August, September, October, and November.
34. Mr. Krolik, on behalf of the defendant, submits that this was a
highly unusual and inappropriate order to make - apparently without a hearing -
on a defendant which had not been served. However, the order itself plainly
came to the defendant's notice, because on 16 November 1999, and thus within in
time specified, the defendant issued a home made notice of application for an
order varying district judge Dabezies' order of 2 November 1999 by (1)
rescinding the condition that the defendant be required to pay £6,000 into
court; (2) by setting aside his "unless" order, and (3) by requiring that rent
due to be paid from 9 August 1999 be "suspended" until the claimants had
complied with their covenants under the lease. The application was supported
by the witness statement of Mr. Newman, dated 12 January 2000, which is in
the papers before this court, and by a schedule of disrepair prepared by the
Defendant's expert, Mr. Leo Lewis FRICS ACIArb.
35. On 14 January 2000, Deputy District Judge Colquhoun dismissed the
Defendant's application to vary district judge Dabezies' order of 2 November
1999, directed the Civil Procedure Rules to apply, ordered the parties to
complete allocation questionnaires and directed that the claimants' costs be
summarily assessed at the determination of the issues as to liability and
damages.
36. Although there is no note of the Deputy District Judge Colquhoun's reasons
for dismissing the defendant's application, they can be inferred from the
defendant's notice of appeal from his order, dated 19 January 2000, which seeks
a stay, and states that the deputy district judge was wrong in law (1) to
dismiss the defendant's application on the basis that he had no jurisdiction to
hear it; and (2) "in refusing to read and consider and hear argument on the
evidence filed including evidence of change of circumstances and new evidence".
Reference is also made to the fact that the order of 2 November 1999 was made
without notice to the defendant and that it expressly gave the defendant the
right to apply. Reference is also made to a number of the Civil Procedure
Rules.
37. The fate of the defendant's appeal from the order of deputy district judge
Colquhoun made on 14 January 2000 is wholly unclear. It appears to have been
the claimants' case - as set out in Mr. King's skeleton argument - that
the appeal was "dismissed on the papers", without a hearing, and that they
were so notified on 25 January 2000. The Defendant says it has received no
such order, and no order of dismissal is disclosed by the claimants.
Mr. Krolick, for the defendant argued that it would be remarkable if the
appeal was dismissed "on paper", without the defendant being given an
opportunity to argue it.
38. Two documents in the papers are also inconsistent with the suggestion that
the appeal was somehow dealt with on the papers and without a hearing. The
first is a "Notice of Appeal Hearing" issued by the court, addressed to the
claimants' solicitors, dated 21 February 2000. This document gives notice (1)
that the appeal hearing was to take place on 14 March 2000 at 10.30am at the
Willesden County Court and (2) that one hour thirty minutes has been allowed
for it.
39. The second is another document issued by the court in response to the
application issued on 20 January 2000 by the claimants for judgment to be
entered for possession on the grounds that the Defendant had failed to comply
with the order of 10 June 1999. On this document the words "TO BE HEARD WITH
THE APPEAL" have been added in manuscript, and the date given for the two
matters to be heard is 14 March 2000, although we were told by Mr. Krolick
that no notification of the hearing of this application was given to the
defendant, and that the notice of application itself was not served.
40. We thus finally come to 14 March 2000, and the orders under appeal. From
the lengthy recitation of the proceedings which I have given, and from the
available documentation it appears that the judge did indeed have before him
(1) the claimants' application to enter judgment and for possession dated 20
January 2000 (albeit it is said this had not been served on the defendant), and
(2) the defendant's appeal from the order of deputy district judge Colquhoun
made on 14 January 2000. I have already recited the orders which the judge
made on 14 March and on 30 March 2000.
41. I have related this sorry history of the proceedings at length because it
seems to me to represent everything which the Civil Procedure Rules are
designed to overcome. In particular, the case appears to have passed through
many different judicial hands, and there appears to have been a total lack of
effective case management by the court. Furthermore, the manner in which
orders of the court have been both made and drawn up leaves a great deal to be
desired.
42. Unfortunately, matters do not improve when we try to discover precisely
what did happen before Judge Krikler in the Willesden County Court on 14 March
2000. It is common ground that the judge did not give a judgment. We have no
transcript of what occurred. We have been shown a letter from a member of the
listing section of the Willesden county court dated 21 August 2000 in which the
judge is reported as commenting:
"The matter was listed in a general list of possession actions, no application
was made for a special appointment with a time estimate.
It was therefore dealt with a one of a substantial list of Local Authority,
Housing Association and general possession actions."
Judge Krikler's note simply records the names of counsel and that an order for
possession in 28 days was made with no order as to costs. "
43. It is clear, both from the court documentation and from what we were told
at the bar that the first two paragraphs of this response are wrong, and that
the judge's memory as to what occurred is mistaken. Although the court notices
refer to both the application for judgment and the appeal being listed at
10.30, we were told that in fact the whole of the afternoon of 14 March was set
aside for the two matters to be heard together. Furthermore, the defendant did
not appear by counsel, but by Mr. Newman, one of its directors.
44. What, then, did happen on the afternoon of 14 March? Counsel for the
claimants, Mr. Karl King, has produced a note which is headed
"Unapproved note of hearing before His Honour Judge Krikler
on 14 March 2000 for the application for permission to appeal"
This is, I understand, based on a note Mr. King made on his return to
chambers after the case. It reads:-
"The Defendant's appeal against the order made on 14 January 2000 came before
His Honour Judge Krikler. Although notification had been given that the
application for judgment would be heard there was confusion as to whether the
application was actually listed and whether the Defendant's application had
been dismissed on consideration of the papers on or about 24 January 2000.
At all events the learned judge heard representations briefly from
Mr. Newman, a director acting on behalf of the Defendant. The learned
judge then indicated that the way he saw round the issue was that he would make
a possession order in favour of the Claimants. The Defendant could continue
its counterclaim notwithstanding that it could not defend the claim.
The learned judge did not deliver a full judgment but made an order for
possession to take effect in 28 days.
On the question of costs, the learned judge then inquired whether a schedule
of costs had been served by the claimants. One had not been served. The
learned judge directed that he would make no order as to costs. I sought to
make representations on the questions of costs but the learned judge said that
was the order he intended to make. The learned judge did not give any detailed
reasons for that decision."
45. The other source of information which we have as to what happened before
the judge on 14 March 2000 is contained in a letter written by Mr. Newman
on behalf of the defendant to the claimants' solicitors on 19 April 2000. That
letter contains these passages: -
"Next we refer to our counterclaim and do not understand why you attempt to
assert that it is at an end. You cannot entertain any serious doubt that our
counterclaim continues, and that it does so with the specific authority of the
Circuit Judge, expressed emphatically not once but twice. As you did not
trouble to attend the hearing you may be unaware that the judge included in his
judgment the premises that our counterclaim was to continue, a point we
specifically raised with him. Contrary to the expressed decision of the judge,
your counsel tried to suggest to us outside the court that our counterclaim was
at an end. At that point, we immediately returned before the judge, informed
him of what your counsel had suggested in the face of his decision, and sought
clarification. Your counsel expressed his views to the judge who again
dismissed the argument and emphatically reaffirmed that our counterclaim
proceeds. ...
As you were absent from the hearing you also appear to be unaware that the
focus was at last on the real issue of this case which is your clients' total
refusal to carry out a single repair to the house, or to agree for us to do so,
with the effect that the occupiers were reduced to living in semi-derelict
conditions unfit for habitation. It was for those reasons, unconnected with
the matter of rent which our counterclaim exceeds by far, that the judge made
his decisions."
46. The letter also states that the judge made reference to the expert's
report obtained by the defendant, and that the statements of Mr. Newman
were also before the judge. The statement of Mr. Newman which is in our
papers is a lengthy complaint about the state of the premises, and the
claimants' alleged failure to honour their obligations under the agreement.
47. A belated enquiry of the court as to the existence of a mechanical
recording was made by the claimants' solicitors on 5 September 2000, to which
there appears to have been no reply. We must, accordingly, do our best with
the limited material available to us.
48. For the claimants, Mr. King maintained his submission that by making
an order for possession, the judge must of necessity have found that the
defendant was in arrears of rent, and thus should have made an order for
payment of the arrears. If there were no arrears, he argued, the judge could
not properly have made a possession order. Equally, Mr. King argued, the
judge must be taken as having dismissed the defendant's appeal against the
order of deputy district judge Colquohon. The order for possession made by the
judge thus amounted to a dismissal of the defendant's defence and counterclaim.
Alternatively, and in so far as the judge concluded that the counterclaim
should proceed, he was wrong.
49. For the defendant, Mr. Krolick argues that the statement of
Mr. Newman, and the expert's report by Mr. Lewis were evidence that
the premises were in a state of serious structural disrepair, and that the
claimants had failed (inter alia) to carry out any repairs in accordance with
their express covenants in the agreement. Furthermore, the local authority was
about to serve notices under the housing legislation. There was no evidence
from the claimants to contradict that evidence. Accordingly, he argues, the
judge must have taken the view that the defendant's position vis-à-vis
the property was untenable, in that there appeared to be no prospect of the
claimants (who resided in Israel and appeared to have no assets within the
jurisdiction) remedying their breaches of covenant. Moreover the residential
occupiers of the property were living in unsafe and unhealthy circumstances.
50. In these circumstances, Mr. Krolick argues, the judge decided to make
an order for possession, expressly relieving the defendant of any liability to
the local authority and the risk of enforcement proceedings being brought
against it, and also enabling the residential occupiers to be re-housed by the
local authority. In making his order the judge was not adjudicating on the
financial dispute between the claimants and the defendants, which would have to
await the trial of the action.
51. Mr. Krolick argues that, by inference, the judge must be taken as
having allowed the defendant's appeal against the order that they be debarred
from defending the action; alternatively, if the judge was making a final order
in the action, he must have taken into consideration the fact that there was no
evidence by the claimants to contradict the defendant's evidence of breaches of
covenant on the part of the claimants. In the context of the state of the
action, and the evidence, it was, he submitted, wrong to suggest that the
effect of the judge's order was that the claimants were successful in the
action.
52. The main thrust of the letter from Mr. Newman dated 19 April relating
to what occurred on 14 March is not, as we understood it, disputed by the
claimants. In these circumstances, and in the absence of any order of the
judge directing a money judgment and disposing of the defendant's appeal
against the order of deputy district judge Colquhoun, the onus must be on the
claimants, as appellants, to satisfy this court that in all the circumstances,
and in the light of what we have been told about the hearing, the judge was
wrong both to make no order for costs in relation to the order for possession,
and to decline to make a money judgment when invited to reconsider the
possession order.
53. The claimants must also, it seems to me, satisfy this court that the judge
must either be taken to have dismissed the defendant's appeal against the order
of deputy district judge Colquhoun, or that he was wrong not to do so.
54. Speaking for myself, and whilst recognising that a substantial degree of
confusion about what the judge may or may not have intended remains, I find it
quite impossible on the material available to draw an inference that by making
an order for possession the judge was also deciding that the claimants were
inevitably entitled to judgment on their money claim. It seems to me equally
impossible to draw the inference that the judge was of necessity dismissing
the defendant's appeal against the order of deputy district judge Colquohon
made on 14 January 2000. The evidence, such as it is, points the opposite
way.
55. It is, of course, unfortunate, that the judge does not appear to have
given a judgment. But given what we do know about what occurred on 14 March,
the failure to give a judgment becomes explicable. He was, in effect, making
an uncontested order for possession without hearing evidence and after dialogue
with Mr. Newman and counsel for the claimants. The claimants' claim for
possession was not being resisted: what was in issue was the claimants' money
claim and the merits of the defendant's counterclaim. In these circumstances,
it was sensible to make an order for possession, with the remaining issues to
be resolved on another occasion.
56. Mr. King faces similar difficulties, in my judgment, on the question
of costs. He is, of course, entitled to point to the general proposition that
costs normally follow the event, and that if judges are going to depart from
the general rule, they should give reasons. There are, however, situations in
which the judge's reasoning is apparent from and contained within the exchanges
which take place in court. We do not have a transcript in this case, but it is
apparent from what we know that the judge had a range of options from which he
could legitimately choose. He had evidence from Mr. Newman as to the
state of the property and the claimants' failure to execute repairs. He could
have adjourned the question of the costs of the possession action until
determination of the money claims; he could have made an order for costs
limited to the costs of obtaining the possession order; or he could, as he did,
make no order as to costs.
57. In such unsatisfactory circumstances as those which apply in the instant
case, it seems to me that, once again, the burden is on the appellant to show
that the judge was plainly wrong in refusing to make an order for costs in the
claimants' favour. In my judgment, the claimants have failed to discharge that
burden; the refusal to make an order for costs in the claimants' favour in this
case has not been shown to exceed the generous ambit within which reasonable
disagreement is possible, and thus to be plainly wrong.
58. I would therefore dismiss this appeal. In my judgment what the case
urgently needs is speedy and efficient case management within the Civil
Procedure Rules so that the outstanding issues between the parties can be
swiftly and economically identified and resolved. It should therefore be
restored to the judge's list as quickly as possible for that purpose.
Lord Justice Henry:
59. I agree.
ORDER: Appeal Dismissed; Appellants to pay respondent's costs, to be
assessed, to be paid in any event.
(Order does not form part of approved judgment.)
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