London Borough of Tower Hamlets v Barrett & Anor

1. LORD JUSTICE WALL: We are very grateful to both counsel. We have read the submissions and the additional documents, including the correspondence between the local authority and the defendants to the county court action. We have come to the view that in all the circumstances the defendants, Mr and Mrs Barrett, should have their costs both in the county court and in this court. We do not, however, think that this is a case for indemnity costs and so the costs will be on the conventional basis. Equally, we do not feel able to make an assessment of the costs in this court, which we understand to be to some extent contentious. But in so far as it is in our power, we will direct that the costs in the county court and the costs in this court be assessed by the costs judge in this building.

2. We take the view that in all the circumstances, and again bearing in mind the history of the litigation, it would be appropriate for the local authority to make a payment on account of costs generally. The point is made, of course, that there is always a risk if there is a payment on account that the costs ordered may not be exceeded by the overall assessment. In this case we bear in mind that there is a substantial bill of costs in the county court which we have now ordered the local authority to pay, and that would of course fall to be added to the costs in this court.

3. In all these circumstances, we have taken the view that there should be a payment on account of £30,000 within 28 days from today. We have no doubt that the costs judge in dealing with the bills and the assessment will bear in mind the observations on proportionality which have been made in this court, and indeed by the judge in the court below.

4. As to the question of an appeal to the House of Lords, we have of course considered that. But once again we think this litigation, despite the interest of the issue, does not warrant this court granting permission. If the local authority takes the view that the point is of sufficient importance to warrant a further appeal, it must make an application to the House of Lords.

5. LORD JUSTICE NEUBERGER: I entirely agree.

6. I want to add this. The parties very helpfully provided some, as usual, minor corrections to my draft judgment. Mr Sisley provided some more substantive comments on paragraphs 4 and 117. I am grateful to him for them, and the final version incorporates the points he made.