Neutral Citation Number: [2012] EWHC 1696 (Ch)
Case No: 2BS30045
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre
Redcliff Street, Bristol 

Date: 21/06/2012

Before :

MR JUSTICE MORGAN
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Between :

	(1)	WILLIAM GARDINER PATON
(2)	TINA SHARON PATON	Appellants	
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	ADRIAN TODD	Respondent	

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The Appellants appeared in person
Mr David Taylor (instructed by Peter Peter & Wright) for the Respondent

Written submissions following judgment
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Judgment

Mr Justice Morgan: 
1.	This judgment deals with the issue of costs following the handing down of my earlier judgment on 11 May 2012 with Neutral Citation number [2012] EWHC 1248 (Ch).
2.	In my earlier judgment, at paragraph 101, I determined that the costs of the proceedings before the Deputy Adjudicator should be remitted to him. Accordingly, the only question as to costs with which I need to deal relates to the costs of the appeal to the High Court.
3.	Following the handing down of judgment, I received written submissions from both sides as to the order for costs which I should make. Mr and Mrs Paton contended that I should order that Mr Todd should pay their costs of the appeal. They submitted that they were the successful party and that costs should follow the event. They said that there were no circumstances which warranted a departure from this general approach. They said that the facts and the legal issues were extensive and complex and that the matter was vitally important to them. They put forward a detailed computation of their costs and said that the sum claimed was proportionate in all the circumstances. They also contended that Mr Todd was “insulated from costs awards” by the Land Registry.
4.	The written submissions prepared by counsel for Mr Todd said that although the appeal had succeeded, the court should not order Mr Todd to pay the costs of Mr and Mrs Paton. Instead, Mr and Mrs Paton should have no more than 50% of their costs. The written submissions then referred to the grounds of appeal and the many issues which were addressed in the course of the appeal. It was pointed out that the issue which I determined against Mr Todd and which led to the matter being remitted to the Deputy Adjudicator had taken very little time at the hearing, perhaps as little as ½ hour out of a 2 day hearing. Further, whatever proportion of their costs were to be awarded to Mr and Mrs Paton, those costs should not be awarded in any event but should be in the case. Mr and Mrs Paton had opposed the remission of the matter to the Deputy Adjudicator. The outcome of that remission was not yet known. It might be that the Deputy Adjudicator would reach the same result as before, albeit on the basis of further evidence and with different reasons. Further, Mr Todd was not able to protect himself against the costs of the appeal by making any protective offer of settlement because Mr Todd was not himself able to suggest an agreed compromise by which the matter was remitted to the Deputy Adjudicator.
5.	I had, inevitably, given some preliminary thought to the appropriate order for costs before I received the parties’ written submissions. My preliminary view was that the right order was that there should be no order as to the costs of the appeal. When I considered the written submissions from Mr and Mrs Paton, I considered that their approach was unrealistic, essentially for the reasons which I will set out below. When I considered the written submissions for Mr Todd, I found that I could agree with much of the detail of those submissions but I considered that the reasoning in those submissions should lead to an order which was more favourable to Mr Todd than the order contended for.
6.	I gave further thought to the various arguments and I became more clear as to my provisional view that the right order was that there should be no order as to the costs of the appeal. I considered whether I should award Mr and Mrs Paton 50% of their costs of the appeal, as costs in the case, on the ground that this was more generous than my provisional view as to the correct order but it was the order suggested by Mr Todd.
7.	I considered that I should not necessarily accept what was in effect a concession on behalf of Mr Todd but I should inform Mr and Mrs Paton of my provisional view as to costs and allow them to make any further submissions on the order I should make.
8.	Mr and Mrs Paton then made further written submissions as to the costs of the appeal. They contended that my decision left undecided what they said was “the main issue” as to ownership of the blue land. They submitted that the true position was that they had 31 years of undisturbed ownership and occupation of the blue land and that they were the owners in possession of it. They said that the question as to whether they were entitled to be registered as proprietors of the blue land had still not been decided. They also pointed out that the Deputy Adjudicator had made an order for costs against them and that that matter had been remitted to the Deputy Adjudicator so that the appeal had succeeded in that respect also.
9.	To avoid any confusion at a later time, I think that I ought to deal with the contention made in Mr and Mrs Paton’s further submission on costs that the Deputy Adjudicator has not decided whether Mr and Mrs Paton were entitled to be registered as proprietors of the blue land. That contention is clearly wrong. At paragraph 5 of his decision, the Deputy Adjudicator stated that one of the matters he had to determine was whether Mr and Mrs Paton were entitled to be registered as proprietors of the blue land, but for the inclusion of the blue land in Mr Todd’s registered title. The Deputy Adjudicator then dealt with the case put forward by Mr and Mrs Paton. That case was that the blue land had been conveyed to them by the conveyance of 1st May 1981. At paragraph 26 of his decision, the Deputy Adjudicator said that Mr and Mrs Paton could not show title to the blue land unless they showed that the blue land was conveyed to them. The Deputy Adjudicator then held that the blue land had not been conveyed to them as they claimed. At paragraph 31 of his decision, the Deputy Adjudicator referred to the fact that they had not established that the blue land had been conveyed to them and then considered whether a person who did not have title to the blue land could apply to rectify Mr Todd’s registered title. At paragraph 32 of his decision, the Deputy Adjudicator referred to the fact that Mr and Mrs Paton could not show that the blue land should be included in their title. It seems to me to be clear that the Deputy Adjudicator did answer the question which he posed in paragraph 5 of his decision and that he held that Mr and Mrs Paton were not entitled to be registered as proprietors of the blue land, but for the inclusion of the blue land in Mr Todd’s registered title.
10.	At paragraph 50 of my earlier judgment I held, in agreement with the Deputy Adjudicator, that Mr and Mrs Paton do not have any title to the blue land. The only possible qualification to that statement is in paragraph 13 of my earlier judgment where I explained that the precise boundary between the blue land and Mr and Mrs Paton’s registered title was not determined by the filed plans as they showed general boundaries only.
11.	Having restated my finding, in agreement with the Deputy Adjudicator, that Mr and Mrs Paton do not have any title to the blue land, I can now deal with the outstanding issue as to the costs of the appeal, In my judgment, the right order to make in this case is that there be no order as to the costs of the appeal.
12.	Mr and Mrs Paton’s application for permission to appeal and their appeal raised a large number of challenges to the decision of the Deputy Adjudicator. Those challenges led to the parties placing a substantial amount of material before the court. That material included a full conveyancing history of the relevant parcels of land and much more information about the use of that land over the years. Mr and Mrs Paton’s case as to ownership of the blue land was that they owned the blue land because it had been conveyed to them. They made detailed submissions by reference to the conveyancing history to this effect and further submissions in relation to the presumptions as to the ownership of the soil of a road. Mr and Mrs Paton  failed in relation to this case. An examination of that case must have involved considerable time and cost for Mr Todd. 
13.	The questions which arose as to rectification of Mr Todd’s title were argued by Mr and Mrs Paton on the basis that they owned the blue land and not on the basis, on which I held I had to proceed, namely, that Mr and Mrs Paton did not own that land. Mr and Mrs Paton devoted comparatively little time to an examination of the reasoning of the Deputy Adjudicator and the submissions of both parties on that question did not involve very much court time at the hearing. Mr Todd’s submissions are probably about right in estimating that that issue took about ½ hour out of a 2 day hearing of the appeal.
14.	In the course of considering my judgment, I indicated that I might be prepared to remit the matter to the Deputy Adjudicator and I invited the parties’ submissions as to that possibility. Mr and Mrs Paton submitted that the matter should not be remitted. I concluded for the reasons given in my earlier judgment that it would be procedurally unfair to decide the appeal in favour of Mr and Mrs Paton as they requested and that the matter should be remitted to the Deputy Adjudicator for further consideration in accordance with the reasoning in my earlier judgment.
15.	Mr and Mrs Paton submit that they have succeeded in appealing the decision of the Deputy Adjudicator. It is right that I have remitted the matter (including the question of costs) to him and that if there had been no appeal, Mr and Mrs Paton would not have obtained the benefit of that result. However, that is not the result which they sought. They brought their appeal to obtain rectification of Mr Todd’s registered title. It remains to be seen, following a further decision by the Deputy Adjudicator, whether they obtain that result. In so far as one should judge who has won the appeal by reference to the order I made, it seems to me that Mr and Mrs Paton have succeeded to some extent but that Mr Todd has also succeeded in resisting the order for rectification which Mr and Mrs Todd asked the High Court to make.
16.	Further, in my judgment, I ought to take into account the degree of success and failure of the parties in relation to the many issues which were argued on the appeal and the resulting costs to the parties of those issues. Mr and Mrs Paton have the benefit of the order for remission to the Deputy Adjudicator but the reasons which led to that order involved comparatively little court time or costs in advance of the hearing of the appeal. Conversely, Mr and Mrs Paton failed in relation to the primary way they put their case, as to ownership of the blue land, and the issues which they unsuccessfully raised took up nearly all of the court time at the hearing and would have involved considerable work and cost for Mr Todd in advance of the hearing. If I were to award costs by reference to the issues and if, in addition, I were to make an order that Mr and Mrs Paton should pay Mr Todd’s costs of the issues which Mr and Mrs Paton lost and a converse order in relation to the issues which Mr and Mrs Paton won, then I consider that Mr and Mrs Paton would end up being the paying, and not the receiving party, and by a considerable margin.
17.	Notwithstanding the comment in the last paragraph, I do not consider that it would be right to go so far as to make an order for costs against Mr and Mrs Paton. Nonetheless, I cannot see that it would be right to give to Mr and Mrs Paton anything towards their costs in the circumstances which I have described.
18.	I reach the conclusion that there should be no order as to costs whether I approach the matter on the basis that I should deal with the costs of the appeal in any event or on the basis that they should be in the case. On either basis, the answer should be the same which is that each party should bear its own costs of the appeal and that the costs, past and in the future, of the proceedings before the Deputy Adjudicator will be dealt with by him following his final determination of the application to rectify Mr Todd’s title.
19.	For the avoidance of doubt, I should say that the arrangements which exist, whatever precisely they may be, between Mr Todd and the Land Registry do not seem to me to have any bearing on my decision as to costs. In other words, whether Mr Todd is or is not indemnified by the Land Registry does not  affect the arguments as to the order for costs which is appropriate as between the parties to the appeal.