Costs — Lands Tribunal — Claimants entitled under Part VIII of the Town and Country Planning Act 1971 to a nominal sum of £100 compensation ordered by President of Lands Tribunal to pay the costs of the acquiring authority — Claimants had claimed in the proceedings £60,000, £80,200 and then finally £76,000 — Held by Court of Appeal, on appeal against the costs order, that the court had no grounds for interfering with the exercise of the President’s discretion, which had not been shown to have been exercised on any erroneous principle — Appeal dismissed
No cases are referred to in this report.
This is an appeal by way of case stated from
the Lands Tribunal regarding an order by the President that the appellants,
Church Cottage Investments Ltd, should pay the respondents’ costs, even though
the appellants have recovered a nominal sum of compensation.
Barry Payton (instructed by Lynch Hall
& Hornby) appeared on behalf of the appellants; David Smith (instructed by
the solicitor to the London Borough of Hillingdon) represented the respondents.
Giving judgment, LORD DONALDSON OF
LYMINGTON MR said: This is an appeal by case stated from a ruling and an
order for costs by the President of the Lands Tribunal. The appeal in respect
of the ruling is not, as I understand it, pursued. The sole issue is the appeal
from the order of costs. The case itself is so admirably brief that I can read
it in full:
1
This was a reference by Church Cottage Investments Ltd in respect of the
compensation payable by the London Borough of Hillingdon pursuant to Section
179 of the Town and Country Planning Act 1971 in respect of a building
consisting of flats situate at Garden Close, West End Road, Hillingdon,
Middlesex.
2
I am the President of the Lands Tribunal.
3
At the hearing I ruled that by reason of my decision hereunder dated
18th August 1988 and of the decision of the Court of Appeal on appeal therefrom
it must be assumed that the willing vendor within the concept required by Rule
2 of section 5 of the Land Compensation Act 1961 would know that the exterior
walls of the relevant building would have to be rebuilt in order to avoid
stress and that if that were not done the statutory 10% tolerance would not be
achieved.
4
I heard evidence in the light of that ruling called on behalf of the
claimants. That evidence was to the effect that the price which a willing
vendor could be expected to accept would lie within the range of £100 to
£1,000.
5
I awarded to the claimants compensation in the sum of £100. I also
awarded to them their costs of the first preliminary issue (which had been
reserved by me) such costs if not agreed to be taxed by the Registrar of the
Lands Tribunal on the High Court scale. I further ordered that the acquiring
authority was to have the costs of the second preliminary issue (which also had
been reserved by me) and further their costs of and incidental to the
proceedings which took place before me on 19th March 1990. My reasons for
ordering the claimants to pay such costs of the acquiring authority as
aforesaid were that in my opinion the acquiring authority had succeeded in the
proceedings in that my award was for a nominal amount whereas the claimants had
claimed in the proceedings £60,000, then £80,200 and finally £76,000.
6
The questions upon which the decisions of the Honourable Court are
desired are:
(1)
whether my said ruling was correct in law:
(2)
whether my said orders requiring the claimants to pay the costs of the
acquiring authority were within my discretion.
Mr Payton, appearing for the claimants,
submits that, if this were a High Court case, the judge could have ordered that
each party pay their own costs but that, as his clients had recovered
something, such a judge could not possibly, in the proper exercise of his
judicial discretion, order them to pay the acquiring authority’s costs. In his
submission, the whole point of allowing a payment into court or making a sealed
offer is to enable the defendant to lay the foundations of an order for costs
in his favour if, but only if, the amount recovered is less than the amount
paid into court or mentioned in the sealed offer, and that, where that course
is not adopted, it is quite impossible to require the person who failed to make
the payment into court or proffer a sealed offer to the court to pay the costs.
That submission would undoubtedly be
correct if the amount recovered had been other than nominal. In the context of
claims for sums varying between £60,000 and £76,000, touching a peak of £80,200
in between, I have no doubt at all that, as the President said, £100 is plainly
nominal and, in those circumstances, in my judgment, the President was entitled
to regard the claimant as having wholly failed. In such an event it is beyond
argument that he would have been entitled to make the order which he did make.
It is to be noted that the President made
special orders with regard to the two preliminary issues, thus showing that he
was indeed exercising a judicial discretion in relation to all three parties to
the proceedings. If, as I say, a High Court judge had made similar orders, I
would have held that he was exercising his discretion, the discretion was his
and not that of this court and that it has not been shown that he acted upon
any erroneous principle. The same must be said of the President in this case.
There is no need to answer the first question stated in the case. I would
answer the second question in the affirmative.
WOOLF and MANN LJJ agreed and did not
add anything.
The appeal was dismissed with costs.
