Neutral Citation Number: [2011] EWCA Civ 406
Case No: B2/2010/0259
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Chelmsford County Court
His Honour Judge Moloney QC
7IP03444
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/04/2011
Before :

LORD JUSTICE LAWS
LORD JUSTICE TOMLINSON
and
MRS JUSTICE BARON
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Between :

	Stanley & Anr	Appellant	
	- and -		
	Rawlinson & Anr	Respondent	

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James Newman (instructed by the Pro Bono Unit) for the Appellants
Kevin Leigh (instructed by Ellisons Solicitors) for the Respondents

Hearing date : 16 March 2011 ON COSTS
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JUDGMENT 

Lord Justice Tomlinson : 
1.	This is the judgment of the court.
2.	The reference to ivy in paragraph 1 of Tomlinson LJ’s draft judgment has been removed in the final and approved version.  The reference to vegetation is taken from Mr Leeds’ report at Appeal Bundle 2 page 196 and the photograph at page 199 to which reference is there made.  We had assumed that the vegetation there seen is in part ivy.  The reference to ivy is of no significance to our conclusion.
3.	We are concerned only with the costs of the appeal from the judge’s order dated 15 January 2010, drawn up on 21 January 2010 and amended on 11 February 2010 under the slip rule.
4.	Having dismissed the appeal against his judgment and order, we see no reason to disturb the judge’s order as to costs in the court below.
5.	Specifically, it is crystal clear from the transcript of the telephone hearing before Judge Moloney on 14 January 2010 that the judge did intend to order that the Claimants pay the entirety of the Defendants’ costs of and occasioned by the expert evidence.  The suggestion that this was only his preliminary opinion and that he changed his mind as is apparent at pages 12 and 16 of the transcript is positively disingenuous – see the judge’s remark at page 29 of the transcript to Mr Parsons to the effect that “you have got to bear all of their experts costs”.  See also the discussion at pages 3-4, page 14 (where Mr Parsons recognised that the judge was not going to resile from his original position) and at page 16.  Thus it is plain that the order as originally drawn up contained a slip.  Moreover, had the judge intended that the Claimants should bear only two-thirds of the Defendants’ costs of the expert evidence, he would have had no need to deal with those costs in a separate paragraph.
6.	The rationale for the award of costs in relation to the expert evidence was that “the expert evidence related entirely to an issue on which the Defendants were wholly successful” – see transcript of the telephone hearing at pages 3-4.  The fact that this court has formed a more favourable view of Mr Croucher’s objectivity than did the judge is not a reason for reconsidering the judge’s order as to costs, the rationale for which is unaffected.
7.	The judge has already discounted the costs of the action recoverable by the Defendants from the Claimants to reflect relative success on issues at trial.  The appeal by contrast has been wholly unsuccessful.  The matters urged upon us by the Claimants in their submissions of 7 April 2011 are of no relevance to the costs of the appeal.  It is not appropriate to penalise the Defendants for declining to engage in mediation following the recommendation of Rix LJ.  Their position has been vindicated.  Moreover, as we were made aware at the end of the hearing of the appeal, offers to compromise the appeal had been made on their side too.
8.	There is no principled basis upon which we could fairly depart from the usual consequences of a failed appeal.  The Appellants/Claimants must pay the Respondents’/Defendants’ costs of the appeal, to be the subject of a detailed assessment on the standard basis if not agreed.