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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DSM Demolition Ltd v O'Driscoll [2002] EWCA Civ 184 (8 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/184.html Cite as: [2002] EWCA Civ 184

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(BIRMINGHAM DR TCC)
(HIS HONOUR JUDGE KIRKHAM)

		Royal Courts of Justice Strand London WC2A 2LL Friday 8 February 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision as to costs by Her Honour Judge Kirkham, given at the hearing on 18/19 September but delivered on 21 September 2001, in proceedings in which she gave judgment for the claimant in a sum which was essentially not disputed. She gave judgment for the defendant in relation to a counterclaim and set-off and to some claimed indemnities. The judge awarded the defendants their costs.
2. In the judge's reasoned judgment, it is clear that she was affected, to an apparently significant extent, by the contents of the letter of 3 March 2000 in which proposals had been set out by the defendants. That letter was a without prejudice letter and does not appear to have been expressly without prejudice as to costs. In those circumstances it is submitted by Mr Cousins, on behalf of the claimants, that the judge was not entitled to take that document into account.
3. Whatever may be the merits of that argument, in the context of CPR Part 36 and the need for some indication from this court as to what material can be taken into account, if any, apart from material set out in Part 36, it seems to me that the claimant should be entitled to put its argument to the full court. In those circumstances, I am prepared to give permission accordingly.
4. The consequence is that there should be a stay until the hearing of the appeal or further order in relation to the detailed assessment of the defendant's costs.
Order: Permission to appeal allowed. Costs of application to be costs in the appeal.