Neutral Citation Number:  EWHC 2923 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
London WC2A 2LL
Thursday, 14th November, 2008
MR J LEIGHTON WILLIAMS QC
(Sitting as a Deputy Judge of the High Court)
BONTOFT & OTHERS
EAST LINDSEY DISTRICT COUNCIL
Mr J Hyam (instructed by Richard Buxton) appeared on behalf of the Claimants.
Mr Diggins (instructed by Browne Jacobson) appeared on behalf of the Defendant.
J U D G M E N T O N C O S T S
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J U D G M E N T
MR LEIGHTON WILLIAMS QC:
1. The claimants are seeking interest and costs. This is a claim in nuisance and Mr Hyam seeks interest running from the date that the nuisance first commenced and at half the short-term investment account rate on the sums that I have awarded for past loss. He does so because he says nuisance protects an interest in land, the loss of amenity suffered by the occupier stems from damage to the land and, therefore, it is analogous to special damage rather than loss of amenity arising in personal injury actions. It is a very interesting argument. It does not make a very great deal of difference on the award of interest in this case.
2. For what it is worth, I am not persuaded by that argument. There may be an element of logic in it, but at the end of the day one is looking at the impact on the occupier, the impact on the human being, and that is a means of evaluating the damage to the land, even if the logical approach is the other way around.
3. What I am going to do is stick with the conventional rule and treat that award as one of general damages and therefore award interest at the rate of 2%. I do however think that there is reason in this case from departing from the usual position whereby interest on general damages is awarded from the date of service of proceedings. Jefford v Gee stated that the date from which interest runs might vary depending on circumstances, although from the date of service of proceedings was to be the general rule. In this case the nuisance first occurred on 3rd April 2006. The Defendants were told of it that day by a very irate Claimant, they promptly set out investigating it, and by 31st May 2006 they had introduced changes in an attempt, unsuccessful as I found, to get rid of that nuisance. They therefore had that time to deal with the problem, and it seems to me right, in the circumstances of this case, that interest should run from 1st June 2006 (which will make it easier to calculate.) So much then for interest.
4. Costs have been the subject of just about over an hour's argument by counsel. The Claimants seek their costs on the basis of the general rule, which is that the unsuccessful party will be ordered to pay the costs of the successful party, as set out in CPR 44.3(2). In response to that, the Defendants say that issues raised on the pleadings were then not pursued and the time spent preparing for those matters and indeed investigating them has incurred costs which have turned out to be wasted.
5. Under CPR 44.3(4):
"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including-
(a) the conduct of the parties."
Note that the provision says "must have regard". So the conduct of the parties has to be regarded, and the conduct of the parties is, of course, primarily, if not exclusively, conduct in relation to the litigation.
6. Here the Particulars of Claim alleged that planning permission, which the defendants had obtained to run a depot, had been obtained unlawfully. The pleading claims damages, and the implication was that amongst the heads of claim for those damages was an allegation that planning permission was obtained unlawfully. I certainly can see why the Defendants took that view, even though they felt they had lawfully obtained planning permission. It was something they had to prepare for, and I can see that it was necessary to obtain witness statements for it. However, that allegation was abandoned on the Thursday before the Monday on which this trial commenced, so there was no reason for it formally to be pursued in the trial. However, the substance of the evidence going to that issue was also necessary and desirable for the court to hear when looking at the overall merits of the case. Part of the Defendants' case when it was opened was that they were acting in the public interest. In that context they wanted to show that what they had done was reasonable, and part of that was to set out the procedure which had been adopted in relation to the planning application. Perhaps of more significance is the fact that the planning issue raised the need to look at the area plans and matters like that, which of course are relevant on the character of the neighbourhood, an important issue for the court to consider in deciding whether conduct has constituted a nuisance.
7. I am therefore at the end of the day not impressed by the argument that a great deal of costs has been incurred by that extra allegation, although I accept that some costs of preparation have been incurred.
8. Mr Diggins, for the Defendants, also points out that, whilst this case has turned essentially on noise caused by RCVs when leaving the premises via Carlton Gate and proceeding on the highway outside, allegations were also made about nuisance caused by staff arriving prior to the exit of the RCVs, about noise on Saturday exiting and return of RCVs, and on the returning of RCVs to the depot after their day's work on weekdays in the afternoon. The first allegation about nuisance arising from the arrival of staff vehicles was maintained in this sense : it was said that the main conduct causing nuisance, the exit of the RCVs via the gate, was compounded by that. It was part of the background to it all. The allegation about RCVs returning in the afternoon was not supported by the Claimants' expert in his report and, therefore, realistically, was never a runner likely to take a lot of time in this court. However, it had been investigated by the Defendants' expert.
9. Likewise, the allegation about the Saturday exiting and return had never been something which featured prominently, although it was looked at by the Defendants' expert, who took readings on that day. There, therefore, was some time spent in the preparation of the Defendants' case which ultimately has turned out not to be of great value. But it is not very great. In fact, I think it is very small in the context of the time this case has taken, which ran, I think, into six days, apart from today when judgment has been handed down.
10. Both parties took time on issues which turned out not to assist the court or on matters where they lost. For the Claimant an application was made on the first day for evidence to be admitted, which I rejected. It is said that the Defendants took an unnecessary time cross-examining. I was generous to both sides so far as examining their own witnesses is concerned, but I do think that cross-examination on behalf of the Defendants, which quite clearly took a lot longer than cross-examination on behalf of the Claimant, did take longer than I reasonably would have expected, and there were occasions when matters were pursued which were no longer in issue. From time to time I nudged Mr Diggins about this.
11. Looked at in the round, it seems to me that, save for the time spent on preparation on the planning issue, it is six of one and half a dozen of the other in this case. Therefore, I propose to make an order that the costs will follow the event, save that the Claimants should be deprived of £7,500 of their costs, which seems to me will cover those preparatory matters which otherwise need not have been gone into.
12. I think it is better to do it that way than to do it by way of a percentage, because who knows what the costs will come to in this case. It seems to me that £7,500 would probably cover the extra time spent taking witness statements, or loss of use of those witnesses, and the extra time spent by the expert on matters which have turned out not to be matters of great importance in this case.
13. Therefore, the claimants will have their costs save for £7,500 Those costs will be assessed, if not agreed.
14. There is an application for an interim payment on account of costs. Mr Hyam is seeking a total of £195,000. £125,000, he says, is approximately two-thirds of the sum claimed to date - this is a conditional fee case - and £70,000 towards the ATE premium due. The ATE premium liable to be paid is £97,000. Mr Diggins says, "Why should the Claimants have an interim payment towards payment of a sum to insurers ?" He would take a different stance if it concerned ordinary individuals. I do not think one can properly distinguish between ordinary individuals and insurers as simply as that. They have provided cover. They have to be paid. There is a liability to pay them, subject to taxation, and therefore I see no reason why an interim payment in principle, or part of it, should not go towards what will ultimately have to be paid to them. But I take the view too that costs should not exceed a reasonable proportion of sums likely to be awarded. I take the view that the appropriate sum here in total should be £130,000. Part of that - I will leave it to the Claimant's solicitors as to what it should be - should be towards the ATE premium. I am not going to hamstring them, because there may be some people who need money more than others. I am happy to leave that in their discretion.