A3/2001/0038/A

Neutral Citation Number: [2001] EWCA Civ 1856
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
MERCANTILE LIST
(Her Honour Judge Caroline Alton)

							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Friday, 23rd November 2001

B e f o r e:

LORD JUSTICE PETER GIBSON
LORD JUSTICE CHADWICK
LORD JUSTICE LONGMORE

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KEITH TERENCE PEARCE

Claimant/Appellant

-v-

LLOYDS TSB BANK PLC

Defendant/Respondent
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 (Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Official Shorthand Writers to the Court)
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MR JAMES QUIRKE (Instructed by Eaton Ryan & Taylor, Lombard House, 145 Great Charles Street, Birmingham, B3 3LP) appeared on behalf of the Appellant.

MR IAN WILSON (Instructed by Martineau Johnson, 78 Cannon Street, London, EC4N 6NQ) appeared on behalf of the Respondent.
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S E C O N D  J U D G M E N T

Friday, 23rd November 2001
1.	LORD JUSTICE PETER GIBSON: We are now faced with an application for permission to appeal from the order for costs made by the judge, that order being that subject to the claimant's costs of an expert being disallowed, the defendant do pay 60% of the claimant's costs. The application for permission was put in front of Mance LJ on paper, and he adjourned it to be heard at the same time as the claimant's appeal. 
2.	The basis on which the application is made is this. The bank submits that the costs order did not properly reflect the substantive findings and orders made. Mr Wilson says that the proper order should be that the claimant should have been ordered to pay the defendant's costs of the claim whilst there should be no order as to the costs of the counterclaim. 
3.	I, for my part, do not accept that the judge exceeded the proper ambit of her discretion in making the order which she did. She explained her reasons in the course of the discussion after giving the second judgment. She pointed out that the fact of the matter was that the bank did not simply focus on saying, “Look, we accept that there has been a change of position in relation to the amounts and we are prepared to pay off your VAT. But you must, in return, pay us the money on our overdrawn account.” The bank challenged the right to claim change of position at all and, as the judge points out, the evidence had to be gone through.
4.	The judge, with her far greater knowledge of the course of the conduct of the proceedings, reached the conclusion that the claimant was the overall winner but that an allowance should be made for the points on which the defendants had succeeded. In my judgment it is not possible to say that requiring the defendant to pay 60% of the claimant's costs was in any way excessive. 
5.	For these reasons, therefore, I for my part would refuse permission to appeal. 
6.	LORD JUSTICE CHADWICK: I agree. 
7.	LORD JUSTICE LONGMORE: I agree.
Order: Application refused. The bank are to receive 90% of the costs of the appeal.