Case No: A2/2011/2154
Neutral Citation Number: [2012] EWCA Civ 572
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE SEYMOUR QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 18th April 2012
Before:

LORD JUSTICE MUMMERY
LADY JUSTICE HALLETT
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LORD JUSTICE TOMLINSON
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	Harbour Castle Limited
	
Appellant	
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David Wilson Homes Limited

Respondent	
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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Michael Driscoll QC and Mr Edward Denehan (instructed by DMH Stallard LLP) appeared on behalf of the Appellant.

Mr Robert Howe QC and Mr David Lowe (instructed by DLA Piper LLP) appeared on behalf of the Respondent.

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Judgment

Lord Justice Mummery:

1.	We have heard considerable argument about the orders that should be made in consequence of allowing this appeal.  The arguments concern a number of matters.  There is common ground as to the form of declaration that should be made and that the case should go back to the High Court to deal with outstanding matters on the applications that have not yet been resolved.  We will direct that those applications, the balance of them, are to be dealt with by a High Court judge.
2.	The most contentious matters have been, as one would expect, about money.  Having heard full submissions from both sides we have in the light of the materials in the papers and the submissions we have heard on the appeal as well as after the appeal, made decisions on the following points of principle.  We have asked junior counsel to agree a form of order which will incorporate the non-contentious directions and will incorporate our rulings on the following points.
3.	First, on the matter of costs, the appellants naturally asked that, as they had succeeded in the appeal, they should have the costs of the appeal and of the hearing below.  That was opposed by the respondents, in particular on a ground that relates to the conduct of the appellants in this litigation and the extent to which they were responsible for the making of the order which has given rise to the further dispute before the judges in this court.
4.	In the light of the submissions we have heard and having regard to the appellant’s conduct in this litigation at first instance, we think the proper order to make is that the relevant costs below and the costs of this appeal be costs in the claim.
5.	It follows, secondly, that we do not make the order asked for by the appellants for an interim payment.  On the basis that they were entitled to the costs below and here they were asking for an interim payment in the sum of £88,000.  Having regard to the order for costs which we think is appropriate, there will be no order for an interim payment.
6.	Thirdly, there was a dispute in relation to the provision in paragraph 4 of the order of HHJ Seymour QC of 22 July 2011 under which the appellants were ordered to pay the respondents the sum of £150,000 by way of an interim payment on account of costs by 4.00 pm on Friday, 5 August 2011.  The appellants submitted that that sum should be repaid to them, as it was paid over on a basis that is no longer applicable.  Having heard objections to such an order from the respondents and considered those, we are of the view that the £150,000 should be paid by the respondents into an escrow account, or into a joint solicitors’ account, or into some such other arrangement as the parties may agree.  We do not think it is appropriate to make an order for payment of interest on that sum.
7.	Finally, there was a dispute between the parties about the costs of an application for security for costs.  It was made by the respondents.  The statement of costs shows a sum of about £19,000.  The appellants accept that they are liable to pay the costs of the security application, but dispute the sum.  Rather than attempt a summary assessment of that, in the absence of agreement between the parties, we think that the appropriate way of dealing with that is that the costs of the security application are to be paid by the appellants to the respondents.  They are to be subject to a detailed assessment, but that assessment is not to take place until after the conclusion of the litigation between these parties.
8.	I think those rulings cover all the points of substance that were in dispute.  I am not suggesting that the drafters of the order should follow precisely the words that I have used.  If they agree, I am sure they will be able to use some more precise and elegant form of wording; so much the better.  I think we have ruled on the matters that are necessary to enable the parties to agree a draft order.
Order: As detailed above