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Case
No: CH 97/1180/3
IN
THE SUPREME COURT OF JUDICATURE
COURT
OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM CHANCERY DIVISION
(Mr.
Justice Robert Walker)
Royal
Courts of Justice
Strand,
London, WC2A 2LL
Friday
30th October 1998
B
e f o r e :
LORD
JUSTICE PETER GIBSON
LORD
JUSTICE PILL
LORD
JUSTICE MUMMERY
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- - - - - - - - - - - - - - - - - - - -
|
|
(1)
ZIPPORAH
MAINWARING
(2)
ROBERT LISLE
|
Appellants
|
|
-
and -
|
|
|
GOLDTECH
INVESTMENTS LTD.
|
Respondent
|
-
- - - - - - - - - - - - - - - - - - - -
(Handed
down transcript of
Smith
Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD
Tel:
0171 421 4040 Fax: 404 1424
Official
Shorthand Writers to the Court)
-
- - - - - - - - - - - - - - - - - - - -
THE
FIRST APPELLANT appeared in person.
THE
SECOND APPELLANT appeared in person.
MR
PETER SHERIDAN QC (instructed by Messrs Lipkin Gorman) appeared on behalf of
the Respondent.
MR
JEREMY MORGAN appeared as Amicus Curiae.
-
- - - - - - - - - - - - - - - - - - - -
J
U D G M E N T
(As
approved by the court)
©Crown
Copyright
LORD
JUSTICE PILL This is another step in prolonged litigation between Ms
Mainwaring and Mr Lisle on the one hand and Goldtech Investments Ltd (the
respondents) on the other. It is an appeal by Ms Mainwaring against the
decision of Robert Walker J on 9 May 1997, following judgments given on that
day and on 26 March 1997, whereby the judge made an order the effect of which
it is agreed was wholly to disallow the respondents’ costs against Mr
Lisle.
The
appeal raises points on the taxation of costs for the resolution of which it is
unnecessary to set out in detail the facts which gave rise to the costs order.
In summary, Ms Mainwaring and Mr Lisle were plaintiffs in an action against the
respondents which was consolidated with another action in which the
parties’ positions were reversed. The orders for costs now relevant were
made by Hoffmann J on 13 November 1989 and 4 December 1989. They provided for
costs to be taxed if not agreed. The history of the litigation is set out in a
judgment of Robert Walker J reported at [1997] 4 All ER 467 which decided
issues of taxation not now before the Court. The taxing certificates arising
from the orders show taxed amounts for costs of £72, 116.95p for the bill
under the earlier order and £1,176.82p for the bill under the later order.
It
is common ground that, upon the making of the orders for costs by Hoffmann J,
Ms Mainwaring and Mr Lisle became jointly and severally liable for the
respondents’ taxed costs. The procedure for taxation is set out in RSC
O62. By O62 r30(3) a party whose costs are to be taxed must within seven days
after beginning the proceedings for taxation send a copy of his bill of costs
to every party entitled to be heard on the taxation. That included Mr Lisle as
well as Ms Mainwaring because they were both directly liable under orders for
costs made against them (O62 r29(8)(a)). Ms Mainwaring and Mr Lisle shared the
same address. However, when at a hearing before the Chief Taxing Master on 18
September 1992 the respondents’ solicitors applied for taxation
certificates against Mr Lisle, who had not objected to the bills, Ms Mainwaring
took the point on his behalf that the bills had not been served on him. That
submission was upheld by the Chief Taxing Master and Mr Sheridan QC, for the
respondents, accepts that from that date the respondents’ solicitors were
on notice that the service on Mr Lisle required by O62 r30(3) had not been
effected.
That
defect was not remedied but on 9 September 1994 taxation certificates were
nevertheless served on Mr Lisle as well as on Ms Mainwaring against whom
taxation had proceeded. Mr Lisle replied promptly rejecting all certificates
and still there was no service upon him. Eventually, on 11 March 1996, Mr Lisle
served a summons seeking disallowance of all costs under O62 r 28(4). Upon the
hearing of Mr Lisle’s summons on 23 May 1996, it was accepted that he had
never been served. The Chief Taxing Master ordered that the copy bills of costs
(as so far taxed) sent to Mr Lisle on 29 March 1996 stand as good service as of
23 May 1996. It is common ground that the intention was to permit a
“re-run” of the taxation of the bills with Mr Lisle alone having
the opportunity to raise further objections. Mr Lisle appealed against that
order.
On
the hearing of the appeal, the result which Robert Walker J sought to achieve
was to set aside the whole taxation proceedings against Mr Lisle and him alone.
In his judgment of 26 March 1977 the judge stated:
“More
than six years had passed since the orders for costs had been made. For three
and a half years the solicitors have been on notice of the failure to serve Mr
Lisle. Dozens of hours of the Chief Taxing Master’s time had already been
taken up in the taxation process. In the interests of the parties concerned and
in the public interest it was time to make an end of the matter.”
Having
heard further argument, the judge on 9 May 1997 contemplated an order setting
aside the taxation proceedings and certificates as against Mr Lisle: “If
I make such an order but it is expressed not to alter Ms Mainwaring’s
liability then unless the Court of Appeal decides that I have not power to make
or ought not to make such an order she cannot and will not be released. Such a
result would be contrary, it seems to me, to principle, precedent and common
sense. ... I cannot accept that justice or equity requires that the taxation
proceedings should be set aside or the certified sums be further reduced as
against Ms Mainwaring. On the contrary, I think that justice and equity
requires that I should set aside the proceedings and certificates against Mr
Lisle alone and that is what I shall do. I shall order that the certificates in
respect of [the bills] should be amended or reissued in a form which names Ms
Mainwaring as the only paying party and by substituting the revised figures
which I have already mentioned and which I understand to be agreed. The
taxation proceedings against Mr Lisle and the certificates as against him are
wholly set aside and if there is any shadow of doubt about that, that fact
should be expressly endorsed on the amended or re-issued certificates”.
The
issues which now arise do not require more detailed analysis of past issues and
submissions. It is agreed that the effect of the judge’s order was wholly
to disallow costs against Mr Lisle within the meaning of that expression in O62
r28(4). The judge was under the impression that Ms Mainwaring could not, and
would not, claim contribution against Mr Lisle, and Ms Mainwaring in her
submissions frankly admits that she may have “muddled” the judge on
that point. The judge may have been influenced by an apparent concession.
Moreover, with respect, he does not appear to have considered the possible
injustice to Ms Mainwaring, if there was no right of contribution, of having to
pay all instead of half the costs in circumstances where the relevant default
was not hers but that of the respondents’ solicitors.
O62
r30 provides:
“(4)
Where, in beginning or purporting to begin any taxation proceedings or at any
stage in the course of or in connection with those proceedings, there has been
a failure to comply with the requirements of this Order, whether in respect of
time or in any other respect, the failure shall be treated as an irregularity
and shall not nullify the taxation proceedings or any step taken in those
proceedings.
(5)
The taxing officer may on the ground that there has been such a failure as is
mentioned in paragraph (4), and on such terms as he thinks just, set aside
either wholly or in part the taxation proceedings or exercise his powers under
this Order to make such order (if any) dealing with the taxation proceedings
generally as he thinks fit.”
O62
r 28(4) provides insofar as is material:
“(4)
Where
a party entitled to costs—
(a)
fails
without good reason to commence or conduct proceedings for the taxation of
those costs in accordance with this Order or any direction, or
(b)
delays
lodging a bill of costs for taxation.
the
taxing officer may—
(i)
disallow
all or part of the cost of taxation that he would otherwise have awarded that
party; and
(ii)
after
taking into account all the circumstances (including any prejudice suffered by
any other party as a result of such failure or delay, as the case may be, and
any additional interest payable under section 17 of the Judgments Act 1838
because of the failure of delay), allow the party so entitled less than the
amount he would otherwise have allowed on taxation of the bill or wholly
disallow the costs.”
Mr
Sheridan’s first submission is that the closing words of r 30(5) empower
the taxing officer to take the course which the judge did on appeal to him. The
wide discretion in the paragraph permitted the judge to discharge Mr
Lisle’s liability and his alone.
In
my judgment, setting aside the existing taxation proceedings, under r 30(5),
would not prevent the commencement of a further taxation. Moreover, the words
“make such order (if any) dealing with the taxation proceedings generally
as he thinks fit” must be read with the preceding words “exercise
his powers under this Order”. Upon a paragraph (4) failure, the taxing
officer is not empowered under paragraph (5) to extinguish a party’s
liability to costs but may exercise powers conferred elsewhere in the Order.
That takes the Court to the powers under r28(4) on which the case turns.
It
is common ground that the orders for costs made by Hoffmann J created in Ms
Mainwaring and Mr Lisle a joint and several liability. By virtue of the common
law rule, one person under a joint liability for debt is released by the
discharge of the other (
In
re EWA
[1901] 2 KB 642). The common law rule was upheld, not without reluctance, in
this Court in
Watts
v
Aldington
(unreported, 15 December 1993). It is subject to the exception that the
creditor may agree with a joint debtor to release him but reserve in the
agreement his rights against the other tortfeasor (
In
re EWA
p 649 and
Watts
v
Aldington
per Steyn LJ). However, it is also common ground that, subject to argument on
the effect of r 28(4), the function of a taxing master, and of the Court on
review of taxation, is to tax costs which is a process of pure quantification.
Miss
Mainwaring, who appeared in person, made submissions which were both clear and
succinct. The issue has nothing to do with the merits but with the application
of the law and construction of the rules. By way of exception to the common law
rule, it would have been open to the respondents to reach an agreement with Mr
Lisle which would have released him while preserving their right to costs
against her. However they did not seek such an agreement but pursued Mr Lisle
for costs as long and as far as they could. Because liability under the 1989
orders for costs was joint, she too was released from liability under these
orders by the release of Mr Lisle by order of the Court. That was the effect of
the disallowance under r28(4) combined with the operation of the common law
rule with respect to a joint debt.
In
the circumstances, questions of contribution did not arise, it is submitted,
and that was consistent with the intention of the rules. O 62 provided a
procedure which the party seeking taxation was required to follow. In this
case, the respondents failed to serve Mr Lisle for a period of six years, for
most of which they were on notice that they had not served. The default was
theirs. In the absence of a right to contribution, the judge’s order was
unfair to Ms Mainwaring who had not defaulted but who would have to bear the
entire costs. If a right of contribution survived, as contended by Mr Sheridan,
that was unfair to Mr Lisle who would have to meet half the costs
notwithstanding the respondents’ solicitors’ default and the
judge’s intentions.
Mr
Morgan appeared as
amicus
curiae
,
at the request of the Court granting leave to appeal, and substantially
supported the submissions of Ms Mainwaring. Taxation procedure under O62 is
based on a single bill of costs and is designed to produce a single
certificate, under O60 r22(1), for the costs allowed by the taxing officer.
R28(4) did not empower a taxing officer to leave a certificate subsisting
against one party subject to an order for costs while setting it aside for a
second party, it is submitted.
Mr
Sheridan’s central submission can also be put shortly. He accepts and
asserts that the issue is one of powers and not of discretion. O62 r28(4)
empowers the court wholly to disallow costs with respect to one defendant while
preserving the liability of the other under the certificate. The effect of the
judge’s order was to put the parties in the position they would have been
had taxation proceedings not been commenced against Mr Lisle. The orders for
costs made by Hoffmann J subsisted and Ms Mainwaring retained her common law
right to seek contribution from Mr Lisle notwithstanding the order under r28(4)
wholly disallowing costs against him. (It is not suggested that there is a
right to contribution under the Civil Liability (Contributions) Act 1978. The
liability is a debt and not covered by the Act.) The law permitted an agreement
between the respondents and Mr Lisle to release him while reserving their
rights against Ms Mainwaring and the order under r28(4) should be construed as
having the same effect.
The
Court is not invited to reconsider the findings of the court below as to the
fact or extent of the default of the respondents by their solicitors in failing
to serve Mr Lisle for a very long time. It is accepted that the default
entitled the Court to disallow costs against Mr Lisle. It is not suggested that
Ms Mainwaring’s awareness of the default should influence the outcome of
the appeal. Mr Morgan submits that what should be regarded as the
“fair” result is one in which Mr Lisle is released altogether and
Ms Mainwaring bears one half of the costs but submits that the rules do not
permit that result.
There
is no doubt that, as between the respondents and Mr Lisle, he is under no
further liability for costs. The issues for the Court, which I consider to be
related, are whether the judge’s order in relation to Mr Lisle
necessarily extinguishes Ms Mainwaring’s liability to the respondents in
costs and, if not, whether it is open to her to seek contribution on the ground
that the joint orders for costs made by Hoffmann J subsist. The two are related
because it may be seen as a fetter upon the r 28(4) power if a defendant who
has obtained a disallowance remains liable to contribution proceedings by a
co-defendant. That disallowance is the starting point because there is no
appeal against it.
In
my judgment, the existence of the common law rule runs together with the
unlikelihood of the rules being intended to create a situation in which a
defendant who has a r 28(4) order, wholly disallowing costs, in his favour
(and in this case who has not been a party to the taxation proceedings) being
liable to contribute. They together go to confirm that the intention of the
rule is that disallowance of costs against Mr Lisle has the effect of
disallowing costs against the joint debtor Ms Mainwaring. Each order of
Hoffmann J was for costs to be taxed (if not agreed). In the absence of
agreement, a taxation in accordance with the rules is necessary if money is to
be recovered under the Order. Upon a nil taxation in accordance with the rules,
the joint debt created by the order in my judgment ceases to exist.
This
may be considered an undeserved windfall for Ms Mainwaring but appears to me
the least unsatisfactory result following the serious default of the
respondents by their solicitors. It would only be in an extreme case, such as
the present, in which a taxing officer would wholly disallow costs against a
party and there can be no legitimate complaint if the joint debtor is also
released.
I
am fortified in this view by the procedure described in rules 22, 28, 29 and
30. There is a single bill of costs and the procedure leads to a single
certificate. Rule 28 permits the taxing officer to disallow costs that he would
otherwise have awarded. It approaches the subject by providing for a reduction
in the amount to be awarded or allowed to the receiving party under the single
bill and does not seek to provide for shades of liability as between paying
parties.
The
judge was concerned about the implications of such a combination for
multi-party actions. If one of many unsuccessful plaintiffs was not served,
disallowance against him would involve disallowance against the other
plaintiffs. I accept that difficulties may arise in such actions but there is
no escaping the obligation under O62 r30(3) to serve every other party entitled
to be heard. Further, the taxing officer must under r 28(4) take into account
“all the circumstances” and courses other than disallowance of
costs against the unserved plaintiff will usually be appropriate. The possible
difficulties faced by a party seeking to tax do not lead me take the view of r
28(4) advocated by Mr Sheridan.
I
would allow this appeal and order that the taxing certificates be reissued so
as to
show
the sum of costs allowed as nil on both certificates.
LORD
JUSTICE MUMMERY: Both Ms Mainwaring and Goldtech Investments Ltd (Goldtech)
are realistic and prudent in their reluctance to claim merit for their stance
on this appeal.
On
the one hand, the problem posed to the Chief Taxing Master, to Robert Walker J
and to this Court would never have arisen if Goldtech's solicitors had complied
with the provisions of Order 62 Rule 29(8)(a) and served Mr Lisle, as well as
Ms Mainwaring, with a copy of the bill of costs at the commencement of the
taxation proceedings.
On
the other hand, Ms Mainwaring,who was served with the bill of costs in
accordance with the rules and then fully participated in the taxation
proceedings quantifying the costs, now seeks to escape all liability for costs
by relying on an irregularity in the failure to serve Mr Lisle (whose address
was at all material times the same as Ms Mainwaring's); and it is an
irregularity which does not nullify the taxation proceedings or any step taken
in those proceedings against her or Mr Lisle (Order 62 Rule 30(4)).
Mr
Lisle has some merit. It would be unjust, at this distance in time from the
making of the costs orders in 1989, to allow Goldtech to begin to tax the costs
against him. There is a possible further injustice to Mr Lisle in his
remaining indirectly liable for the costs via a contribution claim against him
by Ms Mainwaring.
The
critical question in this case, on which my views have fluctuated both during
the course of and since the conclusion of argument, is whether it is
permissible under the provisions of Order 62 to achieve the result which Robert
Walker J sought to achieve. That result has much to commend it on the grounds
of common sense and justice: the taxed costs could not be recovered by Goldtech
from Mr Lisle, but could be recovered from Ms Mainwaring.
I
agree that:
(1)
In so far as Robert Walker J purported to act under Order 62 Rule 30(5) it was
not possible to achieve that result. Setting aside the whole or part of the
taxation proceedings as against Mr Lisle would simply produce a position in
which Goldtech could pursue the taxation proceedings against him. The
reference at the end of Order 62 Rule 30(5) to
"such
order (if any) dealing with the taxation proceedings generally as he thinks
fit".
is
confined to the powers which the Taxing Master is entitled to exercise under
Order 62.
(2)
The only relevant power which the Taxing officer could exercise under Order 62
to achieve that result is Order 62 Rule 28(4). That provision permits the
court to disallow all the costs against the paying party. It does not permit
the court to set aside, cancel or vary the joint and several liability of Ms
Mainwaring or Mr Lisle created by the orders of Hoffmann J on 13 November and
4 December 1989 in respect of the costs to be taxed under that order. The
result contended for by Ms Mainwaring (and supported by the amicus) might
appear to produce a situation in which the joint and several liability of Ms
Mainwaring and Mr Lisle for the taxed costs is cancelled by the order which
they seek i.e. that neither is liable to pay any costs to Goldtech, even though
earlier ordered to do so.
Like
my Lords, I see no escape, however, from the conclusion that the effect of
disallowing all the costs against Mr Lisle, which is permissible under rule
28(4) and is not the subject of any cross appeal by Goldtech, is that, in the
case of a single bill of costs, Ms Mainwaring cannot be treated any differently
in respect of her liability under that bill. I am persuaded, reluctantly, that
the provisions of Order 62 do not permit a result which would preserve the
liability of Ms Mainwaring to pay the whole or part of the taxed costs which
she was ordered to pay and in respect of which her objections were voiced and
adjudicated upon in the taxation proceedings.
I
would also allow the appeal. I agree with the form of order proposed by Pill LJ.
LORD
JUSTICE PETER GIBSON: I agree that this appeal should be allowed. As we are
differing from the judge, I will express my reasons in my own words.
By
the order of Robert Walker J. on 9 May 1997 it was ordered (inter alia) that
the taxation proceedings and taxing certificates arising from two orders of
Hoffmann J. (ordering the Plaintiffs, Ms Mainwaring and Mr. Lisle, to pay
Lipkin Gorman costs to be taxed if not agreed) be set aside as against Mr.
Lisle alone and that the taxing certificates be reissued to show the taxed
amounts for costs as £72,116.95 and £1,176.82 respectively but that
the certificates be endorsed to show that they were not enforceable against Mr.
Lisle. The judge made clear in his judgment that Ms Mainwaring was to be left
as the only paying party. The issue raised by this appeal is whether the judge
had the power to make that order.
It
is not in dispute that the orders of Hoffmann J. caused Ms Mainwaring and Mr.
Lisle to become jointly and severally liable to Lipkin Gorman for the costs
which, if not agreed (and they were never agreed), had to be taxed if a
quantified liability was ever to come into being. That required Lipkin Gorman
to follow the procedure prescribed for such taxation in Part V of O.62. Of
particular relevance is the mandatory requirement that a party whose costs are
to be taxed
must
within 7 days after beginning the proceedings for taxation send a copy of his
bill of costs to every other party entitled to be heard on the taxation.
Plainly Mr. Lisle was so entitled (O.62 r.29(8)(a)), but Lipkin Gorman, who
served Ms Mainwaring alone (a little late on 30 May 1990), by not serving Mr.
Lisle until 23 May 1996 flouted that requirement.
The
matter came before the judge by way of an appeal by Mr. Lisle under O.62
r.28(5), that is to say as an appeal from the exercise by a taxing officer of
the powers conferred by r.28. It was not an appeal under O.62 r.35 from a
decision on a review under O.62 r.34 and so the provisions of r.35 are not in
point. R.28(5) does not spell out the powers of a judge on an appeal under
that paragraph, but I see no reason to disagree with the view taken by the
judge that he would have the powers conferred on a taxing officer under r.28(4)
as well as any other power which is conferred on a taxing officer and the
conditions for the exercise of which are satisfied. It is plain that the
failure to serve the bill of costs on Mr. Lisle as provided for by r.30(3) was
both a failure by Lipkin Gorman without good reason to conduct proceedings for
the taxation of their costs in accordance with O.62 for the purposes of r.28(4)
and a failure to comply with the requirements of O.62 for the purposes of
r.30(4).
The
judge therefore on the appeal under r.28(5) had the power to disallow the costs
of the bill in part or in whole and the power under r.30(5) to set aside the
taxation proceedings either wholly or in part or to exercise his powers under
O.62 to make such order (if any) dealing with the taxation proceedings
generally as he thought fit.
The
judge purported to act under r.30(5) alone or under r.30(5) combined with
r.28(4). Certainly the form of the order which was drawn up suggests that the
judge was acting under r.30(5) in ordering that the taxation proceedings be set
aside as against Mr. Lisle. But that order left Lipkin Gorman in continuing
breach of their obligation under r.30(3), so long as the taxation proceedings
relating to their bill of costs remained subsisting against Ms Mainwaring, and
Lipkin Gorman could serve the bill of costs on Mr. Lisle again out of time,
such failure to serve timeously being again a mere irregularity unless and
until that service was set aside. In other words, the finality which the judge
plainly sought to achieve could not be achieved by that power alone. In
substance the order of the judge was directed to achieving the permanent
disallowance of the costs in the bill of costs as against Mr. Lisle, and it may
be that it was in recognition of this that Mr. Sheridan Q.C., for Lipkin
Gorman, addressed us on the basis that the judge was exercising the power in
the second limb of r.30(5). That, he said, enabled the judge to make such
order dealing with the taxation proceedings generally as he thought fit or if
the judge had to exercise a power specifically conferred by O.62, r.28(4) was
the relevant power.
The
first way in which Mr. Sheridan put the case seems to me to be an impossible
one in view of the language of r.30(5). He thereby ignores the words "exercise
his powers under this Order". That requires the identification and exercise of
a specific power under O.62. The only relevant power is r.28(4). But the
difficulty with the use of r.28(4) in a case where two persons are jointly and
severally liable for costs is that there can only be one bill of costs to be
taxed. If all or any of the costs in that bill are disallowed against one
person, they must be disallowed against the other too. R.28(4) gives no hint
that what the judge did is contemplated by the rule. I take the reason
underlying the requirement of service of the bill of costs on every party
entitled to be heard to be that everyone interested in the taxation of that
bill is to have the opportunity to make representations and will be bound by
the taxing officer's decision.
A
further important consideration is the effect of an order such as that made by
the judge on the right of one person with joint liability for a debt to a
contribution from the other or others with whom he is jointly liable when that
person pays more than his share of the debt. With respect to the judge, it is
not clear from his judgment on 9 May 1997 what effect he thought his order
would have on Ms Mainwaring's right to a contribution from Mr. Lisle if she
paid the taxed costs. The judge quoted from his earlier judgment on 26 March
1997, citing a passage which expressly referred to "likely contribution claims"
against Mr. Lisle and it may be that the judge thought that his order did not
affect Ms Mainwaring's right to a contribution. Further, as Pill L.J. has
pointed out, the judge may have thought the point a theoretical rather than a
practical consideration. But as Mr. Morgan in his helpful submissions as
amicus submitted, the effect of the order causes an injustice in any event to a
person who in the taxation has been an innocent party. The right to a
contribution may have gone, because the order left the liability to costs
quantified in the substantial sums shown in the taxing certificates so far as
Ms Mainwaring was concerned but caused the liability to be quantified as, in
effect, nil so far as Mr. Lisle is concerned. Thus the result of the judge's
order is that they are not joint debtors in the same quantified sum as Lipkin
Gorman cannot recover any costs from Mr. Lisle. This is an outcome which could
hardly have been envisaged when Hoffmann J. made his order against both Ms
Mainwaring and Mr. Lisle and arguably destroys the basis of the right to
contribution. If in these circumstances Ms Mainwaring has no right of
contribution, she will be penalised by alone being liable for the full amount
of the costs. Or the right to a contribution may continue to subsist, in which
case Mr. Lisle will suffer because he has been excluded from the taxation by
Lipkin Gorman's disregard of r.30(3) and may be held liable to Ms Mainwaring in
a sum quantified in taxation proceedings to which he should have been but,
through Lipkin Gorman's default, was not made a party. In short, he has been
denied the opportunity, envisaged by Hoffmann J.'s order that the costs were to
be taxed if not agreed, to challenge the quantification.
In
my judgment the answer to the problem in this case lies in the fact that the
effect of the judge's order is that there has been a disallowance by the judge
of the whole of the bill of costs, purportedly as against Mr. Lisle alone, and
Lipkin Gorman, having initially appealed that order, have abandoned that
appeal. If the costs in that bill are disallowed against Mr. Lisle, they must,
in my judgment, under the rules as they now stand, be disallowed against Ms
Mainwaring too, there being but one bill of costs. I of course understand why
the judge believed such a result to be contrary to common sense (though I am
not aware of the principle or the precedent to which the judge thought it was
also contrary). But whilst I would have liked to achieve a result less severe
for Lipkin Gorman, I do not believe that the rules permit a half-way house
whereby Ms Mainwaring is alone liable for a reduced sum, and Lipkin Gorman, by
their unexplained disregard of the rules, not Ms Mainwaring nor Mr. Lisle, have
caused the unsatisfactory position in which they now find themselves. Those
who ignore the time limits which are prescribed by the rules and which are
designed to achieve the convenient disposal of proceedings within a reasonable
time do so at their peril.
I
therefore agree with the order proposed by Pill L.J.
Order:
Appeal
allowed with costs here and below;
order
as per judgment of Pill LJ; application
for
leave to appeal to the House of Lords refused.
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