Settlement of claim for negligent survey – Terms of settlement contained in Tomlin order – Plaintiffs’ solicitors incurring costs in securing compliance with order – Whether those costs “costs in the action” under terms of settlement
The plaintiffs, Mr and Mrs W, bought a property, 19 Ash Close, Merstham, Surrey, in 1992 on the strength of a survey carried out by the defendant firm, which had been retained by the couples’ mortgagees. On the day they moved in, the plaintiffs saw that the floors sloped and that the house was structurally unsound. They commmenced proceedings in 1994, which eventually came to trial in 1995, when the parties arrived at a settlement of the claim. The terms of that settlement were embodied in a Tomlin order dated July 7 1995, para 6 of the schedule to which provided that “the defendant agrees to pay the Plaintiffs’ costs of the action”. Between the making of the Tomlin order and compliance with it, the plaintiffs’ solicitors incurred certain expenses in the form of disbursements and fees, including the report of an engineer when the works had been completed.
By a summons dated January 14 1997 the plaintiffs sought, inter alia, the leave of the judge to enforce the order for costs. The judge decided that the costs incurred by the plaintiffs in seeking to implement the terms of the schedule during the period (i) after the making of the Tomlin order but before (ii) the issuing of the summons to enforce it, were included in the phrase “costs of the action”. The defendant appealed contending that the judge had erred in construing the terms of the Tomlin order as having the effect of extending the meaning of the term “costs of the action” to the costs of and concerned with the implementation of that order. It was submitted that the phrase, given its plain and natural meaning, meant “costs of the action up to the date of settlement”.
Held The appeal was dismissed.
The costs incurred by solicitors overseeing the carrying out of work required to be done in order to comply with the terms of the Tomlin order were capable of being “costs in the action”, but the phrase was to be construed according to the interpretation as used by the parties in the agreement they had entered into: see Copeland v Houlton [1955] 1 WLR 1072. Fees of the plaintiffs’ solicitors reasonably incurred in procuring that the settlement was carried out could fairly be described as part of the costs of the action, but not their disbursements, such as that incurred by the appointment of an additional expert to grant the certificate on completion of the works. That was not part of the costs of the action in the context of the order in the present case.
Alain Choo-Choy (instructed by Attersolls, of Reigate) appeared for the appellant; Charles Joseph (instructed by Copley Clark & Bennett, of Banstead) appeared for the respondents.
