Plaintiff and first defendant owning property – Plaintiff claiming first defendant had remortgaged property without his consent – First defendant instructing solicitor and selling property to second defendant – Plaintiff claiming property had been sold without his consent and that solicitor had been negligent to act on his behalf – Plaintiff’s claim against third defendant settled by payment into court – Whether third defendant liable to pay costs of all three defendants – Plaintiff’s application dismissed
The plaintiff and the first defendant were the registered proprietors of a charged property at 90 Upper Tulse Hill, London SW2, (the first property). The plaintiff alleged that in 1988 the property was further charged by the first defendant without his knowledge to secure an advance of £15,000. It was claimed that his signature to the charge was a forgery and that the proceeds of the charge were received by the first defendant alone, who used them for the payment of a deposit on another property, (the second property), which she bought with her daughter, the second defendant. The plaintiff claimed that subsequently, without his knowledge, the first property was sold to the second defendant for £85,000, that again his signature was forged, and that he had received none of the proceeds. The solicitor acting on the sale of the first property to the second defendant was the third defendant.
The plaintiff issued proceedings and claimed, inter alia, that the third defendant had been negligent in purporting to act on his behalf. The third defendant paid the sum of £4,000 into court which the plaintiff agreed to accept. The second defendant or her mortgagees sold the first property and, as a result, the plaintiff’s rights in respect of the first property were extinguished, and the plaintiff was given leave to discontinue against the first and second defendants with no order for costs. A dispute arose between the plaintiff and the third defendant in relation to costs. The plaintiff claimed he was entitled to the costs incurred in relation to all three defendants by virtue of RSC Ord 62 r 5(4) which states ‘Where a plaintiff . . . accepts money paid into court in satisfaction of one or more specified causes of action and gives notice that he abandons all others, he shall be entitled to his costs of the action incurred up to the time of giving notice of acceptance’.
Held The plaintiff’s application was dismissed.
1. Even if the entirety of the costs had been at the discretion of the court, in all the circumstances the appropriate order for costs was that the third defendant was to pay the plaintiff’s costs incurred against him only, and not the plaintiff’s costs incurred against the first and second defendants.
2. In any event, the plaintiff’s claims against the third defendant were in substance several or alternative because the third defendant could not be liable unless the first and second defendants were also liable to the plaintiff and were therefore within the scope of RSC Ord 62 r 5(4). Therefore the appropriate order to be made had to be consistent with Ord 62 r 5(4) under which the court was only entitled to award the plaintiff his costs against the third defendant.
Elizabeth Ovey (instructed by Anthony Gold Lerman & Muirhead) appeared for the plaintiff; Ben Hubble (instructed by Cripps Harries Hall) appeared for the third defendant; the first and second defendants did not appear and were not represented.