Case No: B5/2006/1839
Neutral Citation Number: [2009] EWCA Civ 236
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE CRAWFORD LINDSAY QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 18th February 2009

Before:

LORD JUSTICE WALLER
LADY JUSTICE ARDEN DBE
and
LORD JUSTICE MOORE-BICK

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Between:

	THE LORD MAYOR & CITIZENS 
OF THE CITY OF WESTMINSTER	

Respondents	
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MAN	

Applicant	

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(DAR Transcript of 
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THE APPLICANT DID NOT APPEAR AND WAS NOT REPRESENTED.
THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED.

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Judgment
Lady Justice Arden:

1.	This is Mr Man’s appeal against the order of HHJ Crawford Lindsay QC dismissing Mr Man’s appeal against the order of District Judge Taylor.  District Judge Taylor ordered Mr Man to pay the sum of £1,000 in respect of costs ordered to be paid on 22 May 2004.  On 10 April 2008 permission to appeal to this court was given by order of Buxton and Lloyd LJJ, limited to arguing one point, namely that this sum of £1,000 was not payable because it had been compromised by the terms of a Tomlin Order staying all further proceedings.  The respondents, having received that order of this court, decided not to oppose the appeal.  This matter was ultimately listed to come on for hearing, it not having been settled by the parties themselves.  
2.	Shortly before this hearing Waller LJ gave directions about the hearing of the appeal today.  He noted that the respondents did not oppose the appeal.  He accordingly rejected Mr Man’s application for an adjournment of today’s hearing and directed that the order that the court should make was that the appeal be allowed.  He observed that the normal order in those circumstances would be that the appeal should be allowed with costs in this court and below.
3.	Waller LJ went on to direct that, if the normal order as to costs was not to be made, the respondents would have to demonstrate why it should not be made.  He directed them to file a skeleton argument if they wished to oppose the order as to costs, and to serve it by 5.00 pm on Monday 16 February.  Waller LJ further directed that if Mr Man wished to respond, he could either do so in writing and not appear, or appear at the hearing to answer the points.  The respondents did not need to appear at the hearing.  Finally Waller LJ directed that the matter would be disposed of today, finally, and that the time estimate would be reduced to 30 minutes.  Those directions were sent to the respondents and to Mr Man last Thursday.  When the appeal was called on for hearing today, neither party appeared.  Neither party communicated with the court, save that on 12 February, and probably before the directions given by Waller LJ were communicated to them, the respondents put in written submissions to which I will refer briefly in a moment.
4.	Those submissions set out the details of the parties’ communications, starting with the respondents’ proposal not to oppose the appeal or the setting aside of the earlier orders as to costs made by the district judge and by HHJ Crawford Lindsay.  That communication was sent on 10 July 2008.  However, the respondents did not offer to pay the costs of the appeal or below.  The respondents asked for the appellant to provide details of his costs.  This invitation was made in a letter of 14 July 2008, and that invitation was made on several subsequent occasions.  The appellant, Mr Man, who acts in person, did not respond to this invitation, so that caused the respondents to write on several further occasions, as I have explained.  
5.	The respondents still do not consent to an order for costs.  In their written submissions, they submit that, given the appellant’s conduct and the fact that they made a genuine offer to settle this matter by proposing to consider the question of costs when they had received details of the costs, the court should exercise its discretion to order the appellant to pay the respondents’ costs occasioned in the preparation of this appeal and, they say, attendance at this hearing.  The respondents contend that they should have their costs of this appeal as from 6 November 2008 because of the appellant’s failure to provide details of his own costs.  They say that there has to be a hearing solely because of the appellant’s fault.  
6.	I disagree with that conclusion.  It is, to my mind, incomprehensible why the respondents simply did not agree to pay the costs of the appeal here and below as well as agree to the appeal being allowed and to the setting aside of the earlier orders as to costs.  Having conceded the appeal, they would have to show a very good reason why they should not pay the costs here and below.  They should have filed an application for the appeal to be allowed with costs being ordered against them.  Mr Man could have accepted that.  If he did not do so then it would have been for him to explain why he should not have done so.  But it is certainly not a good reason to resist an order for costs of the appeal or below that they have been asking the appellant to provide details of his costs.  That was not the appropriate procedure and has resulted in the necessity of a hearing of this appeal in open court with three members of the court.  
7.	In those circumstances I would make an order allowing this appeal by consent, setting aside the earlier orders as to costs and directing the respondents to pay the costs of this appeal and at the hearings below.

Lord Justice Waller:  

8.	I agree.

Lord Justice Moore-Bick: 

9.	I also agree.

Order: Appeal allowed