The Adjudicator to HM Land Registry

Case Number:				Ref  2004/0448

Title Number:				ON103134

Property:				4 Springdale, Wallingford, Oxfordshire

Applicant:				Philip Thomas Hunt

Respondent:				Karen Beverly Goodrich 

Before:		Mr Clarke sitting as Deputy Adjudicator to her Majesty’s Land Registry. Disposal on paper. 

DECISION ON COSTS

Costs – exercise of discretion – indemnity principle –  litigants in person – what costs may be recovered

1.	In my substantive decision in this matter dated 2nd August 2005, I dismissed Mr Hunt’s claim to a beneficial interest in the Property and, by my order of that date, I directed the Registrar to give effect to Miss Gooderich’s application made on 3rd November 2003 in whole and to cancel Mr Hunt’s caution. In addition, I gave directions for the determination on paper of any application that may be made for an award of costs. It is with the question of costs that I am now concerned.
2.	Miss Gooderich, by her letter dated 11th August 2005 applies for an award of costs in her favour on the basis that she has defeated Mr Hunt’s claim, a claim which (the correspondence shows) Mr Hunt was keen to pursue through the adjudication process. Mr Hunt  (in his letter dated 30th August 2005) objects to an order that he should pay Miss Gooderich’s costs on the basis that his application was “properly and reasonably made” and that he is not in a position to pay any costs that may be ordered. He also objects to certain specific items of the costs claimed, which I will turn to below.
3.	The Adjudicator (Practice & Procedure) Rules 2003 (S.I. 2003/2171) (“the Practice & Procedure Rules”) r. 42 provides that the Adjudicator may make an order as to costs, having regard to all the circumstances, which include the conduct of the parties and whether a party has succeeded, at least on part of his case. Whilst the Practice & Procedure Rules do not specify how the Adjudicator’s discretion is to be exercised, in practice it is exercised consistently with those principles applied under the Civil Procedure Rules. The starting point is therefore that in the absence of reasons to the contrary, the unsuccessful party will be ordered to pay the successful party’s costs.
4.	Mr Hunt was wholly unsuccessful in this matter for reasons which I have given; my conclusion was that on the evidence, his claim failed. I do not accept that Mr Hunt’s claim can be said to have been reasonably and properly brought by reason of any conduct or omission on Miss Gooderich’s behalf although I accept that it can be said to have been reasonably and properly brought in the sense that it was not without foundation. Even so, I do not consider that this is a basis for denying Miss Gooderich an award of costs. Neither should Miss Goodrich be denied her costs because of his inability to pay them. An award of costs in the event that Mr Hunt was unsuccessful was clearly a risk that he (and any other party to an adjudication) runs; that he chose to do so in circumstances where he may not be able to meet his obligations in the event of failure does not, in my judgment, preclude those obligations from being imposed.
5.	Accordingly, I shall direct that Mr Hunt pay Miss Gooderich’s costs of the reference, which I will now proceed to assess summarily on the standard basis (there being no application, still less any justification, for an award on the indemnity basis).
6.	Miss Gooderich was not legally represented before me. Her brother, Mr Gooderich represented her as he was entitled to do under rule 60 of the Practice & Procedure Rules. Accordingly, her claim for costs falls into two categories: those Mr Gooderich incurred in representing his sister and those which Miss Gooderich herself incurred in preparing and presenting her case. Nine items are claimed (1) train fares; (2) lost wages; (3) parking; (4) child care (Miss Gooderich only); (5) time spent on preparation (Mr Gooderich only); (6) subsistence; (7) mileage; (8) obtaining copy documents (bank statements) (Miss Gooderich only) and (9) photocopying (Miss Gooderich only).
7.	Whilst the total claimed for these costs is modest (£1,074.80), Miss Gooderich’s application does raise two important points: can she recover for costs and expenses incurred by Mr Gooderich and, secondly, can she recover lost wages, being losses sustained by her by virtue of the claim.
Recovery of items attributed to Mr Gooderich
8.	Mr Hunt objects to being ordered to pay these costs claimed by Miss Gooderich on two grounds: first, that I have no jurisdiction to award them and secondly, because they were paid by Mr Gooderich (as indeed, Miss Gooderich has confirmed in her letter verified by a statement of truth and dated 5th October 2005), any award would be contrary to the indemnity principle which underlies an award of costs because they were neither incurred by Miss Gooderich nor would it appear that she has or is to re-imburse Mr Gooderich for them. 
9.	In my judgment, there is force in Mr Hunt’s submission in relation to the costs claimed in this category and I accede to it and accordingly disallow those costs contained in the Schedules in the columns headed “Jeremy” (Mr Gooderich). Rule 42(4)(a) of the Practice & Procedure Rules echoes section 109 of the Land Registration Act 2002 and prescribes that  “an order as to costs may…(a) require a party to pay the whole or such part of the costs of another party…” (emphasis added) as the Adjudicator directs. In the circumstances of this case, I do not consider that the costs paid by Mr Gooderich can be described as the costs of Miss Gooderich (there is, as Mr Hunt as identified, no suggestion that she has or is to re-imburse her brother) and, as such, the objections made on the jurisdictional ground and the breach of the indemnity principle (which must apply), in my judgment, hold good.
Recovery of items claimed by Miss Gooderich
10.	These items comprise (a) out-of-pocket expenses – items (1), (3), (4), (5), (6), (7), (8) and (9) and (b) losses sustained by reason of the claim – item (2). Of the out-of-pocket expenses, item (6) was paid for by Mr Gooderich. For the reasons that I have given, I do not consider that Miss Gooderich can recover for that item.
11.	The position as to the recovery of costs of litigants in person has been the subject of statutory provision. The Litigants in Person (Costs and Expenses) Act 1975 allows the recovery of any expenses and losses incurred by a litigant in or in connection with civil proceedings in certain courts, before the Lands Tribunal or in or before any other court or tribunal specified in an order made under subsection 1(c) of that Act by the Lord Chancellor. Since no such order has been made in relation to proceedings before the Adjudicator to Her Majesty’s Land Registry, the statutory scheme does not and cannot be applied. The power to award costs is therefore governed by the position at common law: see Customs & Excise Commissioners v. Ross [1990] 2 All ER 65 (QBD).
12.	At common law, a litigant who was not a solicitor could only claim for his out-of-pocket expenses: Buckland v Watts [1970] 1 QB 27 (CA). Thus, as matter of principle, Miss Gooderich can only claim for those costs listed in paragraph 10(a) above. I accordingly reject her claim for lost wages.
13.	Following my further directions in this matter, Miss Gooderich has provided copy train tickets and verified her expenditure in her letter dated 5th October 2005. I accept her evidence in this regard and find the sums claimed by her under the columns marked “Karen” and comprising train fares (each of £36.50, as per the tickets), parking, child care, mileage, bank statements and photocopying to be proportionate, being both reasonable in amount and reasonably incurred. Accordingly, I direct that the Applicant do pay the Respondent’s costs of the reference, summarily assessed on the standard basis in the sum of £138.60 by 4pm on 2nd December 2005.

Dated this 11th November 2005

By Order of The Adjudicator to HM Land Registry