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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Department of the Environment, Food & Rural Affairs v Feakins & Anor [2006] EWCA Civ 621 (06 April 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/621.html Cite as: [2006] EWCA Civ 621

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR JUSTICE HART

		Royal Courts of Justice Strand London, WC2
		6th April 2006

1. LORD JUSTICE WALLER: We gave judgment on 9 December and two aspects so far as the orders were concerned were adjourned. The first related to the date of the tenancy to be reinstated. That is now agreed as 5 October 2001.
2. The second aspect related to costs. So far as the order for costs in the court below is concerned, a variation has been agreed.
3. So far as the costs in the Court of Appeal are concerned, first regarding the claim, essentially DEFRA were the winners and that is conceded, but what is said on the part of the defendants is that DEFRA put in a respondent's notice alleging sham. The defendants also say that they have succeeded on the reinstatement point and that recognition should be given in relation to those points. In our judgment a small discount does recognise those points and we would order the defendants to pay 90 per cent of DEFRA's costs.
4. So far as the counterclaim is concerned, the starting point in our view is the part 36 offers. In our view, DEFRA are correct in asserting that in essence the terms of the ultimate offer should have been accepted by the defendants. The question that remains is what period they should have had to consider that offer. In our view, they should have had 14 days, and thus the order will be that 100 per cent of DEFRA's costs will be paid as from 14 days from 26 September 2005. As to the costs prior to the part 36 offer, the part 36 offers themselves contemplated each side paying their own costs. Since that, in our view, accurately reflects the fair result, having regard to the fact that there was some win and some loss on both sides, that seems to us to be the appropriate order.
5. The remaining question is whether there should be a stay of some sort in relation to the orders for costs. The argument of Mr Jordan is that there should be a stay because there is at present before the Court of Appeal an application which might have the result of the Feakins, that is the defendants in this appeal, receiving credit for sums that it is said were wrongfully taken from them by the intervention board.
6. It seemed to us that the right approach was to ask ourselves what the position might be, assuming in the Feakins' favour that they were totally successful in the Court of Appeal and totally successful in every sense. That is to say that the court might hold that the intervention board behaved exceedingly badly, not just badly at the time but badly in the course of the litigation in the sense of having produced false evidence and matters of that sort. If that were the situation, would we, looking at the costs of this appeal and costs of the action, make any different order from those that we have proposed? We are not persuaded that we would. It seems to us that this litigation has to be viewed entirely separately, and thus we are not persuaded that there should be a stay of any sort. Thus those are the costs orders that we make.

Order: Costs issues. Defendants to pay 90 per cent of DEFRA's costs.