Feaver v Smith
[2008] WADC 72
•27 MAY 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: FEAVER & ORS -v- SMITH [2008] WADC 72
CORAM: SCHOOMBEE DCJ
HEARD: 7 APRIL 2008
DELIVERED : 27 MAY 2008
FILE NO/S: CIV 2449 of 1999
BETWEEN: ANTHEA DAPHNE FEAVER
First Plaintiff
OSCAR JOHN FEAVER MCNULTY by his Next Friend ANTHEA DAPHNE FEAVER
Second PlaintiffHENRY DAVID FEAVER MCNULTY by his Next Friend ANTHEA DAPHNE FEAVER
Third PlaintiffAND
TAMARA FILOMENA SMITH
Defendant
Catchwords:
Practice and procedure - Costs - Application for special costs order - Section 215 Legal Practice Act 2003 - Liberty to apply within 30 days under O 66, r 51 of Rules of the Supreme Court (WA) - Extension of time under O 3, r 5 - Whether extracted costs order may be varied - District Court no inherent jurisdiction to vary extracted costs order - Slip rule not applicable - Special costs order not supplementary to existing costs order - Delay of more than two years in bringing application - Whether matter of "unusual difficulty", "complexity" or "importance"
Legislation:
Legal Practice Act 2003, s 215(1)
Rules of the Supreme Court 1971 (WA), O 66, r 51
Result:
Application for special costs order dismissed
Representation:
Counsel:
First Plaintiff : Mr D J Garnsworthy
Second Plaintiff : Mr D J Garnsworthy
Third Plaintiff : Mr D J Garnsworthy
Defendant: Mr J R Brooksby
Solicitors:
First Plaintiff : Camm & Associates
Second Plaintiff : Camm & Associates
Third Plaintiff : Camm & Associates
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271
Bailey v Marinoff (1971) 125 CLR 529
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Brooks v Sunlife Properties Pty Ltd, unreported; SCt WA; Library No 970199; 30 April 1997
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253
Conway‑Cook v Town of Kwinana [2001] WASC 37
CSIRO v Perry (No 2) (1988) 53 SASR 538
DJL v Central Authority (2000) 201 CLR 226
Esther Investments Pty Ltd v Markalinga Pty Limited (1989) 2 WAR 196
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Geneva Finance Ltd (Receiver and Manager Appointed) v Resources & Industry Ltd & Anor [2002] WASC 121 (S)
Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309
Gould v Vaggelas (1985) 157 CLR 215
Grassby v R (1989) 168 CLR 1
Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)
Hicks v Insurance Commission of Western Australia [2007] WADC 123
Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S)
Holland v Hardcastle [2008] WADC 39
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Lenby Pty Ltd (in liq) v Lombardo & Ors, unreported; SCt of WA; Library No 930260; 27 April 1993
Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Murcia & Associates v Grey (2001) 25 WAR 209
Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45
Purcell v F C Trigell Ltd [1971] 1 QB 358
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S)
Snowtop Mushrooms Pty Ltd v Powley, FCt SCt of WA; Library No 4501; 14 May 1982
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Stowe v Stowe, unreported; FCt SCt of WA; Library No 950556; 16 October 1995
Way v Swan Television and Radio Broadcasters (1991) 5 WAR 323
West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors [2002] WASC 185 (S2)
SCHOOMBEE DCJ: This matter concerns an application by the plaintiffs for a special costs order pursuant to s 215(2) of the Legal Practice Act 2003 ("the Act").
The plaintiffs issued a writ on 24 June 1999 claiming damages from the defendant pursuant to the Fatal Accidents' Act 1959 in respect of the death of the first plaintiff's husband ("the deceased") in a motor vehicle accident on 2 July 1998. The second and third plaintiffs are the first plaintiff's and the deceased's children, then aged 6 and 3½ years. The claim was for damages in respect of the loss of financial support from the deceased's earnings, his superannuation and other savings together with damages in respect of the loss of benefits that the deceased provided to his dependants by domestic child care and home maintenance services.
On 7 April 2005 the matter was settled between the parties by informal conference subject to the Court sanctioning the compromise on behalf of the infant children. On 3 June 2005 this Court granted leave for the action to be compromised on the terms as agreed between the parties. One of the orders sought and obtained by the parties was that the defendant should pay the plaintiffs' costs and disbursements of the action to be taxed. The plaintiffs applied to have the orders for judgment and compromise extracted and the orders were sealed by the court on 24 June 2004. The perfected orders included the order that the defendant pay the plaintiffs' costs and disbursements of the action to be taxed.
On 28 October 2005 the plaintiffs' solicitors forwarded to the defendant's solicitors a draft bill of costs. An offer was made on 3 February 2006 by the defendant's solicitors, but an agreement on the amount of costs and disbursements payable pursuant to the above order was not reached.
The present application for special costs orders was made on 5 October 2007. This is 2 years and 4 months after the existing costs order was perfected. No explanation for the delay in bringing the application for a special costs order was provided by the plaintiffs' solicitors. It was presumably a case of inadvertence in that the plaintiffs' solicitors did not consider at the time when the compromise was entered into that special costs orders were required.
The plaintiffs now apply for the following costs orders:
"(1)The scale limit relating to getting up case for trial not apply to:
(i) Discovery
(ii) Answers to interrogatories
(iii) Direction to the Taxing Officer to make reasonable allowance for obtaining advice from:
(a) McKessar Tileman
(b) Business Symmetry
(c) The Barton Consultancy
(d) Shakespeare & Co
(iv)An order that the Plaintiffs be awarded any reserved costs;
(v)A direction to the Taxing Officer to make reasonable allowance in addition to any other available items in the scale, for the advice and assistances of:
(a) Mr Martino
(b) Mr Nugawela
(c) Mr Clyne all of counsel
(vi)An order that the allowance claimed for Getting Up Case for trial not be reduced by 25%
(2) Such other orders or directions as may be necessary for the taxation of the Plaintiffs' costs.
(3) The defendant pay the Plaintiffs' costs to be agreed or, in default, taxed."
Jurisdiction to grant special costs order after costs order already made
The first question that arises in this matter is whether this Court has jurisdiction to grant a special costs order where a costs order was already made at an earlier stage. Counsel for the plaintiffs submitted that s 215(2) of the Act contained no time limit and that this Court was therefore empowered to grant a special costs order at any time irrespective of whether an earlier order for costs had been obtained or not.
Subsections s 215(1) and (2) of the Act provide as follows:
"(1) Subject to sections 221 and 241 of this Act and section 14 of the Legal Aid Commission Act 1976 –
(a) the taxation of bills of costs of legal practitioners, as between legal practitioner and client or party and party;
and
(b) any other aspect of the remuneration of legal practitioners the subject of a determination,
is regulated by a legal costs determination in force under section 210.
(2) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following –
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed."
Counsel for the plaintiffs relied on the decision by Registrar Kingsley in Hicks v Insurance Commission of Western Australia [2007] WADC 123 in support of the submission that a special costs order pursuant to s 215(2) could be obtained at any time. In that matter this Court had given leave to comprise an action and had given judgment in a certain amount on 11 November 2005, but had made no order in relation to costs. The plaintiffs' solicitors were given leave to apply for a costs order by re-listing the chamber summons. No such application was made, but the plaintiffs' solicitors filed a draft bill of costs and on 13 July 2006 the bill was taxed in part and thereafter adjourned to enable the plaintiff's solicitors to make an application for a special costs order. It is not clear from the decision when the application for a special costs order was made, but it was clearly more than eight months after the main action was comprised. Although this is not specifically stated in the decision it seems that there was no time limit attached to the leave granted to apply for a costs order.
Registrar Kingsley came to the conclusion at [5] that s 215 of the Act did not impose any time limits and that an application for a special costs order could therefore be made at any time prior to the completion of the taxation. Registrar Kingsley was of the view at [4] that O 66 r 51(2), which imposes a time limit of 30 days for an application for a special certificate for cost, only applied to "the situations where the court is being moved to fix costs" and not to a case where a special costs order was sought pursuant to s 215(2) of the Act.
Order 66 r 51 of the Rules of the Supreme Court 1971 ("RSC") provides as follows:
"51. Where Court may fix costs
(1)Where in any action or matter taxation of costs is not ordered, or any special costs are by these Rules or by any order reserved for the consideration of the Court at trial, the Court may fix the amount of costs payable, or the amount of such special costs, and in every judgment or order of the Court where the question of costs is not specifically dealt with there shall be deemed to be reserved to any party interested liberty to apply within 30 days.
(2) Where under these Rules a party is required to obtain some special certificate for costs, there shall be deemed to be reserved to such party liberty to apply within 30 days."
Order 66 r 51(1) deals with two situations. The first is where a taxation of costs is not ordered, but it is left to the trial court to fix the amount of costs and special costs, if any. The second situation is where a court has handed down a judgment but has not provided for an order for costs. In both instances the rule allows a party liberty to apply for a costs order for a period of 30 days after the judgment was handed down. In respect of the first situation the rule specifically refers to a special order for costs in addition to a costs order while in respect of the second situation the rule only refers to the fact that there will be liberty to apply to any party "interested". However, it seems to me that O 66 r 51(1) contemplates that there is also liberty to apply for a special costs order where the court has handed down a judgment but not provided for an order for costs, because the previous part of the rule which deals with the first situation refers to both, costs and special costs.
Order 66 r 51(2) provides that where a party wishes to obtain a "special certificate for costs" the party is deemed to have liberty to apply within 30 days.
The fact that O 66 r 51(2) deals separately with a "special certificate for costs" in addition to the special costs order referred to in O 66 r 51(1) is somewhat confusing, because as "Quick on Costs", vol 1 par 1.1.010 points out, O 66 of the RSC does not otherwise refer to a "special certificate for costs". The word "certificate" is usually only used in the context of particular special cost orders, namely a certificate for two counsel or a certificate for counsel's fees on appeal. It therefore does not make sense why there is a separate rule dealing with a "special certificate for costs".
"Quick on Costs" states that a certificate for second counsel is not a special costs order under O 66 r 12(1) (the rule which dealt with special costs orders prior to the enactment of s 215(2) of the Act) and relies on Brooks v Sunlife Properties Pty Ltd, unreported; SCt WA; Library No 970199; 30 April 1997, for this statement. However, in Brooks v Sunlife Properties Pty Ltd (supra) Anderson J merely said that a ruling by Malcolm CJ in Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 made in respect of a "special order" under O 66 r 12(1) could not necessarily be applied to a certificate for second counsel, as the latter was a particular kind of a special costs order. This does not mean that Anderson J held that a "special certificate for costs" as referred to in O 66 r 51(2) was not meant to be a reference to a special costs order.
In a number of recent decisions of the Supreme Court of Western Australia including the Full Court it was accepted, without discussion, that O 66 r 51(2) is applicable to an application for a special costs order and not only to a "special certificate for costs" in the sense of a certificate for second counsel or a certificate for counsel on appeal: Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S) at [1] per Pullin J, Geneva Finance Ltd (Receiver and Manager Appointed) v Resources & Industry Ltd & Anor [2002] WASC 121 (S) at [3] – [4] per Heenan J and West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors [2002] WASC 185 (S2) at [5] and [17] per McKechnie J.
It therefore seems to be the situation that O 66 r 51(2) has been interpreted as dealing with any application for special cost orders.
Order 66 r 51(2) does not specifically say that the 30 day period runs from the date of judgment, but this seems to be implied by reason of the fact that O 66 r 51(1) allows liberty to apply for 30 days after the date of a judgment which did not deal with the question of costs. The fact that the period of 30 days starts to run from the date of the judgment also appears to have been assumed, without specific discussion, by Pullin J in Re City of Joondalup (supra) at [1].
Once the 30 day period has expired, a party who wishes to apply for a costs order or a special costs order may apply for an extension of the time allowed in the rule. Seaman, "Civil Procedure Western Australia", vol 1 par 66.51.1 refers to the decision in Snowtop Mushrooms Pty Ltd v Powley, FCt SCt of WA; Library No 4501; 14 May 1982 and states that if the period of 30 days is exceeded, the court may grant an extension of the time pursuant to O 3 r 5 where the time ran out due to an oversight, where in all probability the order would have been made if moved for at the correct time and where the opponent is not prejudiced.
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc, Geneva Finance Ltd (Receiver and Manager Appointed) v Resources & Industry Ltd & Anor (supra) and West Australian Construction Industry Redundancy Fund Ltd v Ortin (supra) all dealt with O 66 r 51(2) in the context of O 66 r 12(1) of the RSC which then dealt with special costs orders but has since been repealed effective 1 March 2007. Section 215(2) of the Act has replaced O 66 r 12(1): Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) at [29] and the further authorities there cited.
Order 66 r 12(1) provided as follows:
"12.(1) Where the Court is of opinion that a Special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may order that any particular allowances in any relevant scale be raised or a limit removed and in giving any such direction the Court may fix a limit within which the Taxing Officer may allow such costs."
In my view there is no reason why O 66 r 51 is not equally applicable to an application pursuant to s 215(2) of the Act as it was to an application pursuant to O 66 r 12(1). The provisions of s 215(2) of the Act are the substantive provisions allowing for special costs orders in certain prescribed circumstances, whereas O 66 r 51(2) contains the procedural directions allowing for the time within which such an application may be made if no other order has been made by a court in this regard.
Order 66 r 11(2) provides that solicitors are entitled to charge the fees set forth in any relevant scale in respect of the matters referred to in the scale. Order 66 r 11(1) defines "any relevant scale" to mean any legal costs determination made pursuant to the Act in respect of regulating the remuneration of legal practitioners. Section 215(1) of the Act provides that any taxation of bills of costs of legal practitioners as between party and party is regulated by a legal costs determination in force under s 210 of that Act. Order 66 r11(2) therefore provides the necessary connection between O 66 of the RSC and s 215(1) of the Act and indicates that O 66 is still applicable to the costs regime provided for in s 215(1) of the Act.
Section 215(2) provides that despite s 215(1) a court may, inter alia, order payment of costs above those fixed by the legal costs determination where it is of the opinion that the costs allowable under the determination are inadequate because of the unusual difficulty, complexity or importance of the matter. Section 215(2) therefore provides for an additional aspect to the costs regime which is now dealt with under the Act and O 66 applies equally to s 215(2) as to s 215(2) of the Act.
I note that "Quick on Costs", op cit, at par 1.1010, says that it is doubtful whether O 66 r 51(1) has survived the enactment of s 215 of the Act. However, at the end of the paragraph which discusses O 66 r 51(1) the learned authors note that the practice in the Supreme Court of Western Australia is to limit the liberty to apply period to 60 days and that "a 30 days period is otherwise deemed to apply by O 66 r 51(1) of the Rules of the Supreme Court (WA)". These two statements are contradictory.
Accordingly, I see no reason why O 66 r 51(2) should not still be applicable to "special costs orders", as they are referred to in practice, even though they now fall under s 215(2) of the Act and no longer under O 66 r 12 of the RSC. A party who wishes to apply for a special costs order pursuant to s 215(2) of the Act therefore has liberty to do so within 30 days after the date of judgment.
The application before me has not been brought pursuant to O 66 r 51(2) and during oral argument counsel for the plaintiffs indicated that that rule was no longer of application as O 66, r 12(1) has been repealed.
Extension of time – O 3 r 5 of the Rules of the Supreme Court
Further, the 30 days after the judgment was granted by the court giving leave to accept the compromise have long since expired. The plaintiffs would therefore have to bring an application pursuant to O 3 r 5 to extend the time allowed. The fact that a court may pursuant to O 3 r 5 and in its discretion extend the 30 day period allowed under O 66 r 51(2) has been accepted in a number of cases, for example: Snowtop Mushrooms Pty Ltd v Powley (supra), per Burt CJ (with whom Brinsden J and Kennedy J agreed); Re City of Joondalup; Ex parte Mullaloo Progress Association Inc; Geneva Finance Ltd (Receiver and Manager Appointed) v Resources & Industry Ltd & Anor and West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors.
The application before me was brought on the basis that there was no time limit for an application under s 215(2) of the Act. However, the fact that s 215(2) does not contain a time limit within which a special costs order has to be applied for, does not mean that no time limit is applicable. I have already indicated that in my view O 66 r 51(2) applies to special costs orders sought pursuant to s 215(2) and once the period of 30 days in which there is deemed to be liberty to apply has expired, an applicant for a special costs order needs to apply for an extension of time under O 3 r 5.
It should be noted that O 66 r 10(1) of the RSC provides that costs may be dealt with by the court at any stage of the proceeding or after the conclusion of the proceedings. However, this rule does not mean that there is no time limit after the conclusion of the trial for a party to apply for a special costs order.
Whether extracted costs order may be varied
There is a further issue which arises in respect of the present application, which is that the costs order obtained by the plaintiffs has already been extracted by them. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407 – 409 Malcolm CJ dealt with an application for special costs pursuant to O 66 r 12(1) of the RSC which application was made three years and four months after the court had given judgment in the matter. At the time of the judgment the court had made an order that the plaintiff pay the defendant's costs of the action to be taxed, with a certificate for second counsel. The judgment was thereafter extracted and thereby perfected.
Malcolm CJ came to the conclusion that the West Australian Supreme Court had inherent jurisdiction to add to or vary a judgment even though it had been perfected by a formal judgment having been entered and extracted. His Honour found that quite apart from the slip rule in O 21 r 10 the court had an inherent jurisdiction to rectify situations which might perpetuate an injustice to litigants. His Honour relied on the statement in Gould v Vaggelas (1985) 157 CLR 215 at 274 – 275 that a court has an inherent jurisdiction to grant a remedy in order to prevent an injustice being caused to litigants by the inadvertence of counsel.
However, in light of the inordinate period of delay in Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) Malcolm CJ found that to allow the application would tend to "bring the administration of justice to disrepute among right thinking people", a phrase which his Honour acknowledged had been used in the judgment in Hunter v Chief Constable of the West Midlands Police [1982] AC 529. Malcolm CJ found that there was a point where the interests of finality of litigation militated against the exercise of discretion in favour of a party whose solicitors had failed by inadvertence to make an appropriate application at the appropriate time. His Honour held that the delay in that matter was sufficient to persuade the court not to exercise its discretion to grant the application and that it was not necessary that in addition to delay prejudice to the respondent was established.
In Lewandowski v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996 the Full Court by a majority of 2:1 declined to exercise its discretion pursuant to its inherent jurisdiction to grant an application for a special costs order where orders as to costs had been extracted and thereby perfected approximately one and a half years earlier. Murray J (with whom White J agreed) came to the conclusion at p 14 that in the circumstances where the appellant had indicated at an earlier stage that it wished to bring the application for a special costs order, but had allowed the respondent to extract the costs order granted by the Full Court after a successful appeal so that the respondent could file an application for special leave to the High Court, delay was not a factor which precluded the grant of the application. Murray J further came to the conclusion that as far as the merits of the appellant's application was concerned the court would have exercised its discretion in favour of making the order sought by the appellants. However, Murray J held at p 5 that the inherent jurisdiction of the court to amend, set aside or vary an order which had already been extracted and thereby perfected was limited. His Honour referred to the following passage from the judgment of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530 – 531 where his Honour in expressing his agreement with the judgments of Menzies and Walsh JJ and with whom Owen J generally agreed, said:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in the court and is in its substance, in my opinion, beyond recall by the court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a process of which it has finally disposed."
Murray J also cited the dissenting judgment of Gibbs J in Bailey v Marinoff (supra) where his Honour said at 539:
"It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made, the court has no jurisdiction to alter it. The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court.
…
The authorities to which I have referred leave no doubt that a superior court has a inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise 'if, in its view, the purpose of justice require that it should do so'."
Murray J further referred to Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 in which the Full Court came to the conclusion that the Supreme Court had an inherent jurisdiction to vary an earlier order granted which was practically impossible to be complied with without the variation granting an extension of time. Malcolm CJ distinguished the decision of the High Court in Bailey v Marrinoff and the earlier decision in Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309, upon which reliance had been placed in the former case and held as follows at 390:
"In my opinion, the decisions of the High Court in Bailey and Goodwin can be distinguished. They were both concerned with the inherent jurisdictions of an appellate court in respect of any appeal which had been finally disposed of by an order duly entered. It can be seen from the judgments that, as a general rule, any superior court has an inherent jurisdiction to modify or vary parts of an order other than the substantive or operative part, or to amend or vary an order so as to carry out the meaning intended by the Court, or to make plaintiff's language which is doubtful. Furthermore, there is an inherent jurisdiction to set aside, amend or vary an order obtained by fraud."
Having referred to the view expressed by Malcolm CJ in Biala Pty Ltd v Mallina Holdings Ltd (supra) Murray J then came to the following conclusion:
"But otherwise it seems clear that unless the court is dealing with a substantive or operative part of an order, which finally disposes of a particular matter, then the inherent jurisdiction may be relied upon to amend or vary its terms, as it may when the concern is to make the order speak in the terms intended by the court."
Murray J also cited with approval at p 9 the following passage of the judgment of Owen J in Stowe v Stowe, unreported; FCt SCt of WA; Library No 950556; 16 October 1995:
"The inherent jurisdiction exists to relieve cases of injustice. However, justice does not exist in a vacuum and the ramifications of actions taken in the interest of justice extend beyond the interests of the parties to the litigation in which the question arises. There is a public interest in the way in which justice is administered. When a litigant calls in aid the power of the court to review, correct or alter a judgment that has been made but not perfected, the court must exercise its discretion having regard to the public interest in maintaining the finality of litigation. The public interest in the finality of litigation is of even more significance when the litigant is calling in aid the inherent jurisdiction to review an order after it has been perfected and on the basis of error or inadvertence on the part of the legal representatives of the applicant. With burgeoning court delays and increasing pressure on courts to dispose of matters expeditiously it will, in my view, be only in exceptional cases that the court should intervene."
It therefore appears that Murray J came to the conclusion that the court's inherent jurisdiction to vary a substantive or operative part of an order which has been perfected should only be exercised in exceptional cases. Referring to the passage quoted from the judgment by Owen J in Stowe v Stowe (supra), Murray J said the following:
"I would respectfully adopt those remarks. In my view, they properly lay emphasis upon the limited and exceptional nature of the exercise of the inherent jurisdiction to relieve injustice, in the consideration of which the court will have regard to the interests of all affected parties to the litigation and the important public consideration of the desirability that the finality of orders disposing of litigation be generally maintained."
Murray J also referred to Esther Investments Pty Ltd v Markalinga Pty Ltd and noted that it was the considerable delay which had occurred in that case which led the court to refuse the defendant's application. Murray J remarked that the point did not appear to have been directly taken in the Esther Investments Pty Ltd v Markalinga Pty Ltd case that the court's inherent jurisdiction did not extend to the variation of the original order.
Murray J then came to the conclusion that although the original costs order might well have provided inadequate recompense for the costs reasonably and properly incurred by the appellant this had to be balanced against the position of the respondent who would be subjected to the obligation to pay additional costs at that late stage. Murray J held at 15 ‑ 16 that the interests of the parties had to be balanced and the wider interest of the finality of the orders made by the court had to be given proper weight. In all the circumstances of that case, including the fact that the original order was in the form in which it was sought and in which it was intended to operate and was clear and unambiguous, there was no injustice which required the exercise of the court's discretion as part of its inherent jurisdiction.
It should be noted that neither in the judgment in Esther Investments Pty Ltd v Markalinga Pty Ltd nor in Lewandowski v Lovell (supra) is there reference to O 66 r 51(2) and the possibility that a party may apply for a special costs order under that rule together with an application for the grant of an extension of time under O 3 r 5. In these two cases the court seems to have proceeded on the assumption that where a costs order has already been made and extracted a subsequent application for a special costs order involves a variation of the existing order and not the grant of an additional costs order.
In West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors (supra) McKechnie J referred to Lewandowski v Lovell and noted that Snowtop Mushrooms Pty Ltd v Powley which dealt with an application pursuant to O 66 r 51(2) and O 3 r 5 was not cited to the court in Lewandowski v Lovell nor referred to in the judgment. McKechnie J considered at [15] that he was bound by the decision in Snowtop Mushrooms and not by Lewandowski v Lovell, because the earlier decision in Snowtop Mushrooms was not brought to the attention of the Full Court in Lewandowski v Lovell. McKechnie came to the conclusion at [14] that the decision in Lewandowski v Lovell did not stand "for anything more than that the discretion to extend time must be exercised in the interests of justice having regard to the respective rights of the parties". His Honour held at [16] that the exercise of the judicial discretion involved weighing a number of different factors on a case by case basis and that it was unhelpful to be overly prescriptive as to the weight to be ascribed to the different factors.
Whereas Esther Investments Pty Ltd v Markalinga Pty Ltd and Lewandowski v Lovell did not refer to O 66 r 51(2) none of the cases which I have cited that dealt with an application made under that rule specifically discuss the question whether an application may be made under O 66 r 51(2) where the original costs order has already been extracted and thereby perfected. It is not clear from the decisions in West Australian Construction Industry Redundancy Fund Ltd v Ortin & Ors and Re City of Joondalup; Ex parte Mullaloo Progress Association Inc whether the existing costs orders had already been perfected. In Geneva Finance Ltd (Receiver and Manager Appointed) v Resources & Industry Ltd & Anor there is reference to the existing costs order having been "entered". In Snowtop Mushrooms Pty Ltd v Powley the judgment by Burt CJ specifically refers to the fact that the earlier order for costs had been formally entered and extracted. However his Honour does not deal with the issue whether this precluded an application pursuant to O 66 r 51(2) and seems to have assumed that it did not.
In Lenby Pty Ltd (in liq) v Lombardo & Ors, unreported; SCt of WA; Library No 930260; 27 April 1993 Walsh J came to the conclusion that the application to vary an existing costs order by granting a special costs order should not be allowed as the court's inherent jurisdiction did not permit a perfected order to be varied. His Honour referred to the judgment by Brennan J in Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 47 – 48 where Brennan J held that the general rule was that a perfected judgment could not be recalled or varied because the public interest required that the judgment when it was entered should conclude the litigation. Brennan J then discussed that there were certain exceptions to this rule, including the exception founded upon the inherent jurisdiction of the court to ensure that its procedures did not affect injustice. Walsh J cited the following passage from the judgment of Brennan J:
"When the inherent jurisdiction of the court is invoked, the court will inquire whether the entered judgment correctly expresses the court's decision (Re Swire (1985) 30 CH D 239), or perhaps whether it requires amendments to keep its records in line with the real position (Mercer Corpn v Rolls Royce Ltd [1972] 1 All ER 211; [1971] 1 WLR 1520) or whether the judgment proceeded from a hearing which was so irregular as to be treated as a nullity (Craig v Kanssen [1943] 2 KD 256; Cameron v Cole (1943) 68 CLR 571 at 589). The jurisdiction may be invoked by application in the proceedings in which judgment was entered."
Walsh J pointed out that the circumstances listed by Brennan J were not exhaustive, but noted that they indicted that there was not an unlimited inherent jurisdiction to recall or vary orders.
It appears that in Lenby Pty Ltd (in liq) v Lombardo (supra) counsel for the defendant (who was the applicant) first relied on O 66 r 51(2) in the course of argument on the day of the application. Walsh J was prepared to entertain the application on that basis, but refused to exercise his discretion and grant the extension of time sought by reason of the delay in the matter, including the delay in relying on O 66 r 51(2).
In Conway‑Cook v Town of Kwinana [2001] WASC 37 a costs order was made on the day that judgment was delivered, but counsel for the plaintiff indicated that the plaintiff might wish to apply at a future stage for an order for special costs and on that basis was given liberty to apply with respect to any costs order. An appeal was lodged, but not pursued by the defendant and ultimately withdrawn. Four months after the withdrawal of the appeal and 11 months after the judgment was handed down, the plaintiff sought to substitute the original costs order with special costs orders to the effect that the limits imposed by the then appropriate scale not apply. Scott J referred to Seaman, op cit, at par 63.0.5 (a passage which no longer appears in the current edition) where the learned author relied on Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (supra) at 47 for the proposition that an extracted judgment cannot be recalled or varied because the public interest requires that when it is entered it should conclude the litigation. Scott J also cited the statement by Seaman, made in reliance on CSIRO v Perry (No 2) (1988) 53 SASR 538 at 557, that reservation of liberty to apply, at least in a final judgment or order, did not authorise the court which made it to discharge or vary it, but only to make those orders that were necessary or desirable to work it out.
Despite citing Seaman and the above two authorities Scott J came to the conclusion at [14] that the plaintiff was not barred from arguing the application for a special costs order because the plaintiff was not afforded a reasonable opportunity to be heard on the question of costs on the day that the judgment was handed down (the plaintiff had indicated that he had commitments in another court and did not have time to argue any special costs orders). However, Scott J refused the plaintiff's application because of the delay of 11 months and also because the application did not have a good prospect of succeeding on its merits (at [22]).
Counsel for the plaintiffs also relied on a decision by Deputy Registrar Harman in Holland v Hardcastle [2008] WADC 39. However, this decision is not relevant to the present issues. In that case, Deputy Registrar Harman refused to grant an application by the defendant for a permanent stay of the proposed taxation of the costs awarded to the plaintiff where the plaintiff had not pursued the taxation for 10 years after the date of the trial. In that case no application was made to vary an existing cost order; the issue was only whether the plaintiff could proceed to a taxation of a costs order made on the date when the judgment was granted.
The above discussion of the case law leaves open the question whether an application for a special costs order may be brought pursuant to O 66 r 51(2) within 30 days of the judgment, or within an extended time allowed pursuant to O 3 r 5, even if an existing costs order has already been extracted. It is not necessary for me to make a finding in this regard, as the present application is not based on O 66 r 51(2) and no application has been made for an extension of time. As indicated earlier, the application is made on the basis that s 251(2) of the Act allows a party unlimited time to make an application for a special costs order.
District Court no inherent jurisdiction
Insofar as a costs order which has already been extracted can only be varied by application of the inherent jurisdiction of a court, this Court would in any event not be able to do so. The District Court is a creature of statute and does not have inherent jurisdiction: Murcia & Associates v Grey (2001) 25 WAR 209 at [16]. In DJL v Central Authority (2000) 201 CLR 226 at [50] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ came to the conclusion that the Full Court of the Family Court of Australia, itself a creature of statute, did not have inherent jurisdiction and therefore no power to re-open its final orders after their entry.
Pursuant to s 55 of the District Court of Western Australia Act1969 the District Court does have ancillary or incidental powers which are necessary for the exercise of such jurisdiction as is conferred upon it: Murcia & Associates v Grey (supra) at [16] and Grassby v R (1989) 168 CLR 1 at 16. However, as the District Court does not have jurisdiction to re-open its final orders after their entry there is not incidental power to be exercised in this regard.
Accordingly, I am of the view that this Court does not have the inherent power to vary an existing costs order which has already been extracted.
Whether special costs order is variation of costs order or supplementary order
This leaves open the question whether an application for a special costs order is always a variation of an existing costs order granted in general terms (e.g. the plaintiff to pay the defendant's costs to be taxed) or whether, at least in some cases, it can be regarded as an application for a supplementary costs order.
In Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 264 ‑ 265, the Full Court of the Federal Court came to the conclusion that an order for indemnity costs to be paid by a party's solicitors was a supplementary order to an existing costs order and that an application for the indemnity costs order against the solicitors did not involve a variation of the existing party and party costs order.
In my view the special costs orders sought in this case cannot be said to be supplementary to the existing costs order between the parties. These special costs orders applied for in this case raise the scale limit in relation to getting up case for trial in a number of respects and request an additional allowance in respect of the advice and assistance of counsel. In addition the application for the special costs order requests that the allowance for getting up not be reduced by 25 per cent by reason of the fact that liability was not in issue. The only order requested as part of the special costs orders which could be considered to be supplementary to the existing costs order is that the plaintiffs be awarded any reserved costs.
Accordingly, if I had to decide this case on the basis of an application under O 66 r 51(2) and O 3 r 5 I would have followed Lewandowski v Lovell and come to the conclusion that the special costs orders applied for require a variation of the existing extracted costs order and that the existing costs order could only be amended by a court with inherent jurisdiction.
There is one order sought by the plaintiffs which in my view does not amount to a variation of the existing extracted costs order, but is in the nature of a supplementary order. This is the order that the plaintiffs be awarded any reserved costs. The existing order that the defendant pay the plaintiffs' costs and disbursements of the action to be taxed does not include an order in respect of the reserved costs. This is a matter which still needs to be determined by a court, unless the parties can agree on who is responsible for the reserved costs. The affidavit sworn by Mr John Brooksby on behalf of the defendant, dated 25 May 2008, indicates that there was one occasion on 25 October 2002 where costs of an application had been reserved by the court. If the parties are unable to agree on who should be liable for those costs, the plaintiffs would be entitled to have that application heard by this Court. It is not possible for me to determine on the available material whether the plaintiffs should be awarded the costs of the hearing on 25 October 2002.
Whether costs order granted by consent may be varied
There is another issue arising on the facts of this case and that is that the existing costs order was obtained by consent, as part of the comprise which the court sanctioned. In Stowe v Stowe Ipp J rejected the appellants' argument that the considerations applicable to whether a consent order should be altered were similar to those governing the rectification of an agreement. Ipp J held that the question whether an existing costs order could be amended to indicate the parties' intention that the costs were not payable forthwith was to be determined by "broad considerations of justice". Where the order, although obtained by consent did not correctly reflect the party's intention the court was entitled in its inherent jurisdiction to amend the costs order even though it was obtained by consent.
In Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573 at 579 Kirby P (with whom Hope JA and Priestly JA agreed) also came to the conclusion that the fact that an order had been obtained by consent did not mean that the court lost the discretion conferred upon it by r 3 of the Supreme Court Rules 1970 (NSW) which is the equivalent to O 3 r 5 of the RSC. Kirby P held that the terms of an agreement between the parties may or may not, in the particular circumstances, be relevant to the exercise of the court's discretion conferred by the rules. His Honour rejected the argument based on the decision in Purcell v F C Trigell Ltd [1971] 1 QB 358 at 365 that a consent order could only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons.
Accordingly, the mere fact that an existing costs order was obtained by consent is not a bar to a court varying such an order where it has jurisdiction to do so. The terms of the consent order and the manner in which it was entered into are factors relevant to the exercise of the court's discretion conferred by the rules or by its inherent jurisdiction. This means that the fact that the plaintiffs' solicitors in this case asked for the existing costs order to be made by consent would not have been a bar to an application for special costs orders made under O 66 r 51 and O 3 r 5 but for the fact that the original costs order had already been extracted.
Counsel for the plaintiffs also relied on Way v Swan Television and Radio Broadcasters (1991) 5 WAR 323 in support of the argument that a special costs order may still be granted at a later stage even though the action has been compromised. However, in my view this case is not of relevance as it specifically dealt with the acceptance of an offer made under O 24A of the RSC. Anderson J held that the matter of costs was not intended by O 24A to be part of the "contract" made by the acceptance of an offer under that order. Whereas the acceptance of O 24A offer was always on the basis that the offeree would be entitled to such costs as might be properly recoverable on taxation, this did not mean that there was no room for judicial intervention in the matter of costs. The acceptance of an offer under O 24A did not extinguish the court's jurisdiction to make appropriate orders in respect to costs.
The decision in Way v Swan Television and Radio Broadcasters Ltd (supra) is therefore limited to the particular provisions of O 24A and is not authority for the proposition that a court may always vary a costs order which formed part of a compromise reached between the parties.
Slip rule not applicable
Counsel for the plaintiffs also relied on the so-called slip rule which is O 21 r 10. This rule provides as follows:
"10 Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission may at any time be corrected by the Court on motion or summons without an appeal."
In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452 McHugh JA (with whom Priestly JA and Clarke A-JA agreed) summarised the principles applicable to the equivalent rule in the District Court Rules 1973 (NSW). His Honour held as follows at 452:
"If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake. Matters such as costs or interest on a judgment, for example, are almost always incidentally involved in proceedings, and the court has power to deal with them even though they are not specifically raised at the hearing provided, of course, the omission was accidental. No doubt in some cases there will be difficulty in determining whether or not the subject of the proposed variation relates to a matter which was in issue or whether it is to be regarded as a separate and distinct matter which was not in issue."
McHugh JA further explained what type of omission or mistake could be regarded as "accidental" and held as follows at 453:
"The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herchell in Hatton v Harris (at 558) if the matter had been drawn to the court's attention would the correction at once have been made?"
Whereas it could be said in this case that a special costs order is incidental to a more general costs order and that it was overlooked by reason of the omission or mistake of the plaintiffs' solicitors, I am of the view that it does not qualify as "accidental" in the sense ascribed to this word by McHugh JA. The decision of whether a special costs order in the terms requested by the plaintiffs should be made involves the exercise of an independent discretion and is a matter upon which a real difference of opinion might exist. If the special costs orders had been raised at the time of the court granting leave to accept the compromise those orders would not have been made as a matter of course, but they would have been likely to have been objected to by the defendant, as is the position at this stage.
Accordingly, the plaintiffs are not entitled to rely on the slip rule in order to obtain the special costs orders sought at this stage.
Merit of application under O 66 r 51(2) and O 3 r 5
If the application for special orders had been made under O 66 r 51(2) and an extension of time had been sought under O 3 r 5 and the original costs order had not yet been extracted, I would nevertheless have refused the application.
Where an application or appeal is made out of time the court usually takes into account the following factors in determining whether the discretion to grant the applicant leave to proceed with the application should be exercised:
1.The delay in bringing the application;
2.The explanation provided for the delay;
3.The merits of the application;
4.Any prejudice suffered by the respondent.
The above four factors were held to be applicable in respect of an application for an extension of time for an appeal in Esther Investments Pty Ltd v Markalinga Pty Limited (1989) 2 WAR 196 at 198 and were also relied upon in Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) at 406 ‑ 409 which dealt with a late application for a special costs order.
In Lewandowski v Lovell Murray J came to the conclusion at p 13 that the application was meritorious and that the order for special costs would have been granted if it had been in the court's jurisdiction to do so. At p 15 his Honour stated that it was "irrelevant to the exercise of the inherent jurisdiction" that the special order might well have been made if it had been sought at the appropriate time. I do not understand this observation to mean that the merits of the application are irrelevant. It seems to me that his Honour made that comment in the context of saying that where the original order granted was clear and unambiguous, there was no compelling argument that the existing form of the order created an injustice which would require the court to vary the order in its inherent jurisdiction. Murray J also stressed that the position of the respondent had to be considered and that there was no justification for the respondent being subjected to the obligation to pay additional costs at such a late stage (at p 15 ‑ 16). The delay in bringing the application in that case was 1 year and 8 months, although the court accepted that there were special circumstances which provided an acceptable explanation for the delay (at p 13 ‑ 14).
In the present case the delay is 2 years and 4 months since the existing costs order had been perfected and as indicated earlier, no explanation for the delay in bringing the application has been provided.
As regards the merits of the plaintiffs' application, this seems to be a borderline case. Section 215(2) of the Legal Practice Act provides that a special costs order may be made by a court where the amount of costs allowable under a legal costs determination is inadequate because of "the unusual difficulty, complexity or importance of the matter". In Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) Martin CJ noted that it was common ground between the parties in that case that the word "unusual" qualified only the expression "difficulty". His Honour came to the conclusion that the word "importance" was not to be read as "public importance" because, if that had been the intention of the legislature, it would have been reasonable to expect the legislature to use such words. Martin CJ held at [19] that in assessing the "importance" of a matter, a court should have regard to the question whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance could either arise because of the significance of the issues to the parties or because of the significance of the issues to other respective parties, the public or the community generally. In that case the issues related to the question whether liquidators should be removed from the liquidation of a company and his Honour held that the issues raised were of considerable significance to the liquidators in the practice of their profession, as the issues involved serious allegations against the liquidators.
The question therefore is whether the issues that were in contention in the present matter were of unusual difficulty, complexity or importance to the plaintiffs. There was no suggestion that the issues raised in this matter were also of importance to prospective parties, the public or the community generally.
Counsel for the plaintiffs submitted that the plaintiffs' action was of unusual difficulty, complexity and importance in that the financial circumstances of the deceased were complicated by reason of the fact that he was self‑employed. Considerable consultation was necessary with counsel and the experts in order to determine what matters the experts had to cover in their expert reports. There was also disagreement between the experts for the plaintiffs and the experts for the defendant as to how the deceased's future gross and net income and therefore the loss of his dependants should be calculated. Further, the plaintiff submitted that the outcome of the proceedings was important to all of the plaintiffs as it impacted on their welfare over a period of several years.
It appears from the affidavit of Mr Richard Camm, sworn on 30 November 2007 and filed in support of the plaintiff's application, that the deceased was a self‑employed engineer and had entered into various commercial relationships, including a partnership agreement. The affidavit further states that the precise legal arrangements relating to the deceased's income were obscure and that it was difficult to calculate the manner in which the deceased's income was to be distributed. The deceased had made the business arrangements for purposes of tax minimisation and the plaintiff's expert indicated that there were several ways in which the deceased's income could be calculated depending on the approach taken to such issues. Mr Camm says in his affidavit that there was uncertainty as to how the deceased's gross and net income should be calculated and that it was not clear how the law discussed in various legal authorities should be applied to the facts of the present case. Accordingly, counsel's advice was obtained in this regard and there were numerous discussions between the solicitors, the first plaintiff, counsel and the plaintiff's expert in respect of the calculations to be made by the expert and with regard to each draft report provided by the expert. It also appears that there was a dispute between the deceased's partner and the deceased's estate regarding the terms of the partnership and although this was resolved, Mr Camm states in his affidavit that the impact of the settlement had to be taken into account in the formulation of the claim.
Mr Camm's affidavit further sets out that the discovery in the matter was lengthy and complicated. The plaintiff's discovery affidavit contained 336 items, some of which were privileged and this required advice from counsel.
Mr Camm attached a draft bill of costs for taxation, dated 29 November 2007 to his affidavit. This bill of costs sets out in detail the amounts allowed in respect of various matters under the scale and the amounts sought as part of the special costs orders. Substantial increases are sought in respect of discovery, provision of interrogatories and getting up for trial.
The court has also been supplied with a number of expert reports dealing with the gross and net future income of the deceased, as well as with a family trust deed.
Counsel for the defendant submitted that the issues in the litigation were not unusually difficult, complex or of importance as the question of how to calculate the deceased's gross and net future income was largely an issue for the experts. It was further a question for the taxing master to what extent the costs charged by the experts would be allowed.
I am of the view that this is a marginal case. It does appear that the financial arrangements entered into by the deceased and the corporate structures created for tax minimisation were relatively complex and obscure and that it would have taken the plaintiff's solicitors more than the usual amount of time to establish the facts and to instruct the experts on the issues that needed to be dealt with.
It seems to me that the amount of $25,575 which is allowed under the 2004 scale for getting up for trial may have been exceeded. Martin CJ observed in Heartlink Limited v Jones as liquidator of HL Diagnostics Pty Limited (in liq) (supra) at [16]:
"The requirement of inadequacy of the scale costs will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination."
His Honour further stated at [20] that the determination as to whether a matter was of unusual difficulty, complexity or importance should be made as a matter of impression rather than as a matter of detailed evaluation and that it was not necessary that an applicant demonstrate by way of a detailed evaluation of a draft bill for taxation that a limit was inadequate.
Accordingly, but for the many other hurdles that the plaintiffs face in this application, I would have come to the conclusion that there would have been merit in an application for special costs orders if such an application had been made at the requisite time. It should also be kept in mind that the final amounts that will be awarded for any particular item remain in the discretion of the taxing officer despite the allowance of a special costs order.
In addition to taking into account the delay, the explanation for the delay and the merits of the application, a court also needs to consider any prejudice suffered by the respondent to the application. As Murray J said in Lewandowski v Lovell at 16, the interests of the parties must be balanced and the wider interest of the finality of the orders made by the court must be given proper weight. The importance of reaching finality in litigation was also emphasised by Malcolm CJ in Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) at 409 where his Honour held as follows:
"There must come a point where the interests of finality of litigation militate against the exercise of discretion in favour of a party whose solicitors or counsel have failed by inadvertence to make an appropriate application at the appropriate time.
It has been urged upon me by counsel for the defendant that the court should be reluctant to visit upon the litigant the consequences of inadvertence by his solicitors or counsel. So much may be accepted, but there must be in the interests of the administration of justice and finality in litigation some limit to the exercise of that discretion which is by way of an indulgence of the court. If a litigant suffers loss or damage as a result of inadvertence amounting to negligence, he has a remedy."
In my view it would not be in the interest of justice if a defendant who had been of the understanding that he had to pay a certain amount of costs to the plaintiffs would be exposed after the passage of 2 years and 4 months to a sudden change of circumstances which would require him to pay a substantially greater amount in costs pursuant to a special costs order.
Accordingly, even if the application for special costs orders had been made under O 66 r 51(2) and O 3 r 5 and the original costs order had not yet been extracted, I would nevertheless have refused this application on the ground of delay, the lack of explanation of the delay and the prejudice to the defendant arising from exposure to a much larger costs order after the passage of such a substantial period of time.
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