Hawkes v Cuddy & Ors

1. The Court has decided to make orders as set out in the draft minute of order attached. These are the reasons of the Court for the costs orders on the above appeals in so far as they were not the subject of our judgment.

2. We have carefully considered the parties’ written submissions.

3. In our judgment, the Cuddy’s cross-petition was in substance a counterclaim. We note that the judge gave permission for it to be amended on the basis that the amendments did not enlarge the factual scope of the trial. The costs order in favour of Mr Hawkes should therefore follow the normal practice in relation to counterclaims. In order to avoid the difficulties and considerable costs of the costs judge having to assess what costs were increased by the cross-petition, we have decided that it is appropriate to make an assessment, necessarily approximate, of the relative costs of the cross-petition on this basis, and to make what is in effect a set off by making a deduction that reflects both the Cuddys’ costs on the cross-petition and Mr Hawkes’ costs on the cross-petition. That set off is set out in paragraph 6 of the order, and takes account of paragraph 4 of the judge’s order.

4. The consequences of our order are that save as otherwise specifically ordered below: (i) There is no order as to costs on the petition until 23 July 2007. (ii) From that date to 23 October 2007, Mr Hawkes is to pay to the Cuddys 90 per cent of their costs on the petition, in accordance with paragraph (4) of the judge’s order. (iii) The Cuddys will pay to Mr Hawkes his costs on the cross-petition to 23 October 2007. (iv) The Cuddys’ liability for Mr Hawkes’ costs on the cross-petition after 23 October 2007 and his liability for 90 per cent of their costs on the petition after that date are set off by the order that Mr Hawkes pay to the Cuddys 70 per cent of their aggregate costs after that date.

5. So far as the costs of the appeal are concerned, the Cuddys were in substance successful so far as the petition is concerned, but unsuccessful in relation to the cross-petition. We consider that the appropriate order is that Mr Hawkes pay 80 per cent of the Cuddy’s costs of the appeal. We have made an order for an interim payment on account of those costs. We do not consider it appropriate to make an order for an interim payment in relation to the costs below. The judge made no such order.

6. The other provisions of the order are uncontroversial.