Deutsche Bahn AG & Ors, Re

Lord Justice Tomlinson :

1. This is the ruling of the court.

2. We accept that the relatively common case of an oral application for permission to appeal directed to be heard “on notice” to the respondent is not dealt with in PD52C para 20(2). In such circumstances the court does not “direct” the respondent either to file submissions or to attend the hearing, although frequently if not usually such a hearing is directed to be “on notice” to the respondent because the court anticipates that it may well be assisted by submissions from the respondent.

3. The case may be considered in the circumstances to fall within PD52C para 20(1) so that an order for costs will not normally be made in favour of respondents.

4. On the other hand it is clear, and not we think disputed, that the court has a discretion whether to depart from the normal position and to award the Respondents their costs. If that proposition is disputed, we hold that we have such a discretion.

5. It is very unhelpful for parties to mischaracterise their opponents’ position in the grotesque manner achieved by Counsel for the Fifth Defendant at paragraphs 3 and 4 in their Submissions on Costs. Neither at paragraph 32 of their Jolly v Jay submissions nor elsewhere did the Claimants either “specifically ask” that the permission applications be dealt with at an oral hearing nor did they “press for” an oral hearing. Paragraph 32 speaks for itself.

6. The submissions made by Mr Turner QC, both in writing but more particularly orally at the hearing, were of enormous assistance to us in enabling us properly to understand the implications of the Defendants’ arguments. Without the benefit of those submissions it is possible that the parties would have been condemned to incur the costs of a substantial substantive appeal the outcome of which we can now be confident would be dismissal of the Defendants’ arguments. This is complex commercial litigation between substantial parties in which significant sums are sought by way of compensation. We have no hesitation in concluding that the Claimants/Respondents should be awarded their costs.

7. Ordinarily a party will not recover the costs of submitting Jolly v Jay submissions but here those submissions served also as the Respondents’ skeleton argument for the purpose of the oral hearing.

8. We accept the submission that the costs sought by the Respondents are unreasonable and disproportionate in amount. Summary assessment is a blunt instrument. We assess the Respondents’ recoverable costs of and occasioned by the Appellants’ unsuccessful applications for permission to appeal in the sum of £25,000 net of VAT.

9. We do not understand the Respondents to have suggested that each Appellant group should be liable for a third of the total costs – see paragraph 13 of the submissions of Mr Mark Hoskins QC for the Fourth Defendant. We see no reason to depart from the normal form of order which renders the Appellants jointly and severally liable for the Respondents’ costs. There is no basis whatever for the suggestion by the Second, Third and Sixth Defendants that they should bear no costs liability. They sought to be put in the same position as the Fourth and Fifth Defendants so far as concerns the permission to appeal applications and they should bear the same liability in respect of the costs thereof.