Foote v Dixon
[2014] ACTCA 51
•19 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Foote v Dixon |
Citation: | [2014] ACTCA 51 |
Hearing Date: | 15 May 2014 |
DecisionDate: | 19 December 2014 |
Before: | Murrell CJ, Refshauge and Dowsett JJ |
Decision: | 1. The appeal is dismissed. 2. The appellant pay the respondent’s costs of the appeal incurred · up to 1 August 2012 on a party and party basis · thereafter and up to 20 February 2013, on an indemnity basis; and · thereafter on a party and party basis. 3. The respondent’s costs of the appeal include the costs of her submissions concerning the question of costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – GENERAL PRINCIPLES –Negligence – Whether standard of care breached – No basis for disturbing finding of trial judge PROCEDURE – Costs – Calderbank offer – Appellant acted unreasonably in not accepting offer |
Cases Cited: | Dixon v Foote [2012] ACTSC 101 Fox v Percy (2003) 214 CLR 118 |
Parties: | Andrew Foote (Appellant) Susan Virginia Dixon (Respondent) |
Representation: | Counsel Mr A Bartley and Mr F Fascano (Appellant) Mr D Campbell and Mr D Hirsh (Respondent) |
| Solicitors Ken Cush & Associates (Appellant) Bradley Allen Love Lawyers (Respondent) | |
File Number(s): | ACTCA 67 of 2012 SC 778 of 2007 |
Decision under appeal: | Court: ACT Supreme Court Before: Sidis AJ Date of Decision: 27 June 2012; 24 July 2012; 26 July 2012 Case Title: Dixon v Foote (No 1, 2 and 3) Citation: [2012] ACTSC 101; [2012] ACTSC 119; [2012] ACTSC 123 |
THE COURT:
The respondent, Susan Virginia Dixon, consulted the appellant, Dr Andrew Foote, a urogynaecologist, on 24 September 2004 for advice concerning the breakdown of a mesh sling that provided support following the prolapse of her uterus.
On 22 October 2004 as a result of a further consultation, Dr Foote recommended that she have an abdominal hysterectomy and sacral colpopexy which he then performed.
Post-operatively, Mrs Dixon’s condition deteriorated very significantly necessitating further urgent surgery.
She has experienced ongoing difficulties and disabilities as a consequence and on 2 November 2007 commenced proceedings in the Supreme Court of the Australian Capital Territory claiming damages for personal injury suffered by her as a result of Dr Foote’s claimed negligence.
On 27 June 2012, the Supreme Court (Sidis AJ) found Dr Foote negligent and ordered that there be a verdict for Mrs Dixon. See Dixon v Foote [2012] ACTSC 101.
On 24 July 2012, the Supreme Court quantified the damages and entered judgment for Mrs Dixon in the sum of $284,427.16 plus costs.
Dr Foote has now appealed against the judgment on a number of grounds set out in the Notice of Appeal. Some of those grounds were abandoned at the hearing of the appeal.
On 15 May 2014 the Court dismissed the appeal and said we would give our reasons later. These are our reasons for dismissing the appeal.
The issues at the trial
It is not necessary to set out each of the grounds of appeal as counsel for Dr Foote made it clear that the following were the issues to be agitated on the appeal.
He submitted that Mrs Dixon’s claim was that Dr Foote had been negligent at each of three stages whilst she was under his care.
She said that he had been negligent when she initially consulted him in diagnosing a prolapse of her uterus and recommending that she have an abdominal hysterectomy and sacral colpopexy.
Mrs Dixon also complained that Dr Foote was negligent in the conduct of the surgery for the hysterectomy and sacral colpopexy.
Initially, it was claimed that he had severed the right ureter but at trial the claim was varied, without complaint from Dr Foote, that the right ureter had not been severed but had been damaged.
Mrs Dixon further complained that post-operative treatment by Dr Foote provided to her had been negligent and she suffered further injury through the damage to her right ureter when urine leaked into her peritoneal cavity; Dr Foote delayed investigation and remedial action which caused additional and long-lasting injury.
The learned trial judge found, after a careful analysis of the evidence and a thorough assessment of the credibility of the witnesses, that Dr Foote had been negligent at each of these three stages.
Although Dr Foote would have to show that the learned trial judge erred in finding that he had been negligent at all three of these stages in order to have the judgment in Mrs Dixon’s favour overturned, the damages flowing from the negligence at each stage may have been different. The Court, however, found that none of Dr Foote’s challenges were made out.
Pre-operative advice
Mrs Dixon, who trained and practised as a nurse for some time, including as a surgical nurse, experienced some difficulties following the birth of her children resulting in stress incontinence and a prolapse of her uterus. In 2002, Dr Foote inserted a mesh sling to hold up the prolapse of her uterus.
Subsequently, in September 2004 she noticed the mesh sling had extruded from her vagina and she consulted Dr Foote.
There was a factual dispute between her and Dr Foote at trial as to whether, in addition to the protruding mesh, she had a prolapse of the uterus and whether Dr Foote had made a proper diagnosis of such a condition.
Mrs Dixon gave evidence that she had no sensation of prolapse, no symptoms of prolapse.
Dr Foote asserted that there had been a prolapse but there was no contemporaneous record of that from the initial consultation and only a reference to “o/e ut desc”, meaning “on examination uterus descending”, at a second consultation on 22 October 2004.
It was common ground that, if there was no symptomatic prolapse, a hysterectomy was not indicated.
The learned trial judge preferred the evidence of Mrs Dixon to that of Dr Foote whom she found was not credible. Indeed, she found (at [165]) “that the defendant [Dr Foote] lied to the plaintiff [Mrs Dixon] in his contention that she suffered from some pre‑existing condition with a view to averting any claim she might bring as a result of the unfortunate outcome of the surgery”.
Counsel for Dr Foote did not attack the factual finding of the learned trial judge that there was no symptomatic prolapse of Mrs Dixon’s uterus but submitted that it was inappropriate for her Honour to reach such a severe view of Dr Foote’s credibility particularly, as he submitted, it was not put directly to Dr Foote that he had lied.
There can be no doubt that the learned trial judge rejected the evidence of Dr Foote and the judgment shows reasoned and credible reasons for doing so. An appeal court must, particularly on issues of credibility, have regard to the advantage of a trial judge who has seen and heard the witnesses and, as a result, been able to make assessments of their credibility.
In Fox v Percy (2003) 214 CLR 118 at 125-6; [23] Gleeson CJ and Gummow and Kirby JJ referred to the requirements, and limitations, on an appellate court which
... must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
It was clearly open to the learned trial judge to reject Dr Foote’s evidence. She did so. Whether the finding that he lied was harsh or too severe or made without expressly putting that allegation to him, cannot overcome the ultimate finding that Ms Dixon had no symptomatic prolapse of her uterus when she consulted Dr Foote and he recommended surgery to her.
Dr Foote’s counsel referred to a further passage of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at 128; [28] as follows
However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. (Citations omitted)
In this case, however, counsel for Dr Foote pointed to no incontrovertible fact or uncontested testimony that could throw any doubt on the findings made by the learned trial judge.
Not only were the findings open to her Honour, but they were generally supported by the medical evidence of, not only the experts called on behalf of Mrs Dixon, but, indeed, the expert called on behalf of Dr Foote as well to some extent.
Having carefully considered the submissions made by Dr Foote’s counsel, there is no basis to disturb the finding of the learned trial judge that Dr Foote was negligent in the advice he gave to Mrs Dixon that she required a hysterectomy and sacral colpopexy on the basis of a symptomatic prolapse of her uterus, which she did not have.
Other grounds of appeal
Dr Foote’s counsel argued that there was no negligence in the conduct of the operation by Dr Foote or in his post-operative care.
Having heard the submissions of counsel and his references to the relevant evidence, and having read the decision of the learned trial judge, we are satisfied that, for the reasons her Honour gave, her findings of negligence were not only open to the learned trial judge on the evidence but correct.
For these reasons we agreed that the appeal should be dismissed.
Costs
The respondent sought an order for costs. The respondent sought a special order for costs because of offers of compromise made in the course of the appeal proceedings. The appellant opposed that course, submitting that the actual course of the correspondence did not justify it.
The Court permitted each counsel to make written submissions on the issue, and these were received by the court.
The history of this appeal complicates the question of costs. The first instance judgment was delivered on 24 July 2012. The notice of appeal was filed on 16 July 2012 and served on 26 July 2012. On 31 July 2012, the respondent offered to settle the appeal by accepting the sum of $250,000 in damages, plus costs of the appeal to be agreed or assessed, together with costs pursuant to orders made by the trial judge. This offer was to remain open for acceptance for 28 days from the date of the letter. It was said to be a “Calderbank offer”. The original judgment was in the amount of $284,427.16. Thus the respondent was offering to settle for a significantly reduced sum. The appellant did not accept the offer within the specified time.
The appeal was listed for hearing on 20 February 2013. On that day, the respondent again offered to settle on much the same terms. The appellant apparently accepted the offer. Annexure “A” to the appellant’s submissions as to costs evidences the agreement. The first page is headed “Heads of Agreement” and identifies such heads as:
1. We pay $250,000 inclusive of interest.
2. Plus costs at the first instance as ordered by Siddis AJ.
3. Plus costs of appeal on party/party basis.
4. …
5. Payment of $250,000 to be made within 28 days.
6. Discontinuance with prejudice once $250,000.00 plus costs paid.
7. Plus release by Plaintiff.
8. Plus all of above terms not to be disclosed.
Attached were draft consent orders, signed on behalf of both parties. As a result of such agreement, the appeal hearing did not proceed on that date. The orders were as follows:
1. The Appeal is allowed.
2.Proceedings SC778 of 2007 be remitted to the Court constituted by a single judge for further hearing and decision.
3. No order as to costs.
Note: The parties have reached a confidential agreement in proceedings SC778 of 2007.
The parties sought to file the consent orders. As appears from the reasons of the Court of Appeal dated 14 June 2013 (Foote v Dixon [2013] ACTCA 25) at [4]–[12], the following events then occurred:
4.The orders were requisitioned, with the parties being referred to recent authorities (mentioned at [14] below) dealing with the circumstances in which a court should make consent orders allowing an appeal.
5.The matter was then mentioned twice before Penfold J. At the first mention, on 13 March 2013, Penfold J made orders for the filing of written submissions in support of the making of the consent orders, with particular reference to the arguable appellable error or errors relied on by the parties to justify the upholding of the appeal.
6.Submissions were accordingly filed. The respondent’s submissions rejected the proposition that any arguable appellable error needed to be identified, and declined to identify any such error.
7.At the next mention before Penfold J, on 18 April 2013, it emerged that there had been developments in the nature of the orders sought and the extent to which there was consent by both parties.
8.The parties confirmed that, as well as the order allowing the appeal, they still sought an order for the matter to be remitted to a trial judge for a further hearing and decision. However, counsel advised that the agreement between the parties was that once the matter was remitted to a trial judge, the proceedings would be terminated. That is, there was no genuine intention to have a further trial and, in particular, no intention to use further court resources rehearing the matter.
9.The appellant also sought an order setting aside the findings of the trial judge, but the respondent did not consent to that order.
10.Counsel declined an offer to list the matter for an oral hearing, involving senior counsel, of the question whether the orders sought could properly be made by consent, indicating that if the Court was not minded to make the orders on the basis of the written submissions and the information provided and submissions made before Penfold J, then the parties would seek a listing for the hearing of the appeal.
11.During the mention on 18 April, submissions were made by counsel for the appellant to the effect that the matter was an inter partes matter involving only private rights. In that context, counsel said she was instructed that the Medical Board of the ACT, which had earlier been conducting an inquiry into a complaint made by the respondent about the appellant (mentioned in Dr Andrew Foote v Michael Somes, Warren Johnson, Dr Catherine Sansum acting as Professional Standards Panel and Medical Board of the ACT and ACT Human Rights Commission [2012] ACTSC 63 (16 May 2012)), was not awaiting any findings or judgment in relation to the current proceedings in order to complete its inquiry. Counsel at one point indicated that she would obtain instructions about whether an appropriate affidavit could be provided, but the matter was not raised again during the mention.
12.On 7 June 2013 Penfold J on behalf of the Court refused to make consent orders in the terms sought, and indicated that the Court would provide reasons later.
At [25]-[27] the Court said:
Conclusions
25.We came to the view that, even if we had found that the decision should be set aside, acquiescing in the parties’ request to refer the matter to another judge for rehearing would judicially condone “forum shopping”, set an undesirable precedent as to the use of court resources, and potentially place the Court in a very invidious position if the parties’ agreement broke down. Had the parties merely sought to withdraw the appeal on terms not to be disclosed, the Court would have entered orders to that effect by consent. However the Court did not consider it appropriate to make orders by consent setting aside the decision of the primary judge and ordering a rehearing where no arguable error had been shown in the primary judge’s decision.
New Court of Appeal Listing
26.As mentioned at [10] above, the parties indicated that if the Court was not willing to make the orders sought, then the matter should be listed for a hearing of the appeal. We considered, having regard to the issues canvassed in this matter, that the appeal should be heard by a differently constituted Court of Appeal, and will so order.
Orders
27.Accordingly, on 7 June 2013, we made several orders. The first group of orders were that the application be dismissed with each party to pay its own costs, but that leave be granted to the parties to make any further application to the Court for a period of 21 days. The second group of orders were that the proceeding be listed for a hearing as a contested appeal, before a differently constituted Court of Appeal, subject to the 21 day period referred to in one of the first orders, and that the parties had liberty to apply to the Registrar for such a listing.
It is neither necessary nor appropriate that we express any view as to the correctness or otherwise of the approach taken by the Court of Appeal in refusing to make the consent orders sought by the parties. There has been no appeal, and so the Court’s orders remain in force as between the parties. We proceed accordingly.
The following account of subsequent events is based upon the appellant’s submissions concerning costs. The respondent has not challenged the accuracy of this version of events.
Pursuant to the orders made by the Court of Appeal, the appeal was listed for hearing on 4 November 2013. On 21 August 2013 the respondent made a further offer of settlement. On 23 August 2013 the appellant made a counter‑offer. In financial terms the orders may have been to similar effect, but the counter‑offer required that the respondent concede that there were arguable appealable errors in the original judgment. The parties did not reach agreement. On 16 September 2013 they were advised that the appeal hearing could not proceed on 4 November 2013. Subsequently, the appeal was set down for hearing on 15 May 2014.
On 13 May 2014 the appellant made a “Calderbank offer”. The offer dealt with a number of matters, including the amount to be paid in satisfaction of the “proceedings at first instance and the appeal”, interest and costs. It also provided that the terms of settlement not be disclosed to third parties. The appellant required that the respondent enter into a deed of release, a copy of which was attached. The deed of release provided for discontinuance of the appeal and for payment of the offered amount in discharge of liability, but did not make any provision for discontinuance of the original proceedings. There was no requirement that the respondent concede appealable errors. In any event on 13 May 2014 the respondent rejected the offer but invited the appellant to discontinue the appeal, subject to argument as to costs. Alternatively the respondent’s solicitor offered that:
… my client will accept $760,000 in full and final settlement of the proceedings, that is, for damages, interest and legal costs.
The above figure includes party/party costs up to the date of the Calderbank offer served before the trial, and no costs in respect of the argument on the terms of settlement of the appeal.
If either of the above is acceptable to your client, the Court should be made aware of this immediately to obviate the need for the bench to prepare for the full day hearing of the appeal on Thursday.
Concerning this offer, the appellant submits that:
The offer being made did not represent a genuine offer of compromise on the part of the respondent as:
(a) it did not provide a breakdown which allowed the appellant to consider the offer;
(b) it did not represent a genuine attempt to compromise and resolve the claim;
(c) it was not identified as a Calderbank offer;
(d) it did not contain an expiration date.29.It is submitted that the respondent’s conduct at this point meant that the appellant was unable to attempt a proper resolution of the matter.
On 14 May 2014 the respondent made a further offer to resolve the proceedings on the basis of payment of the sum of $315,000, inclusive of interest with, “appropriate costs orders in relation to the appeal and all other orders in relation to costs (to) remain”. The appellant made a counter‑offer in the sum of $295,000 and otherwise in accordance with the terms of its letter of 13 May 2014. The appellant claims that the respondent, “declined to attempt to resolve the matter and restated their offer of $315,000 plus costs …”.
In her submissions, the respondent relies only upon the offer of 31 July 2012 as being directly relevant to the question of costs. Where a Calderbank offer has been made, an offeree who acts unreasonably in rejecting an offer of settlement, may incur a negative consequence in costs. In particular, a successful offeree may be deprived of some part of his or her costs. An unsuccessful offeree may be ordered to pay some, or all of the offeror’s costs on a basis other than “party and party”. In the present case, the respondent effectively submits that she should have her costs of the appeal and, as to costs incurred after expiry of the offer of 31 July 2012, that such costs should be taxed on an indemnity basis.
Although it may not matter, it seems that at least at some stage in the negotiations, the appellant was seeking to satisfy the respondent’s claim by a payment to be made other than pursuant to the orders made at first instance. Presumably, he saw advantage in there being no judgment against him. Whilst such a course may have been open to him prior to the judgment at first instance, one is intuitively uncomfortable with the proposition that after a trial and judgment, the parties may simply agree effectively to expunge the judgment from the public record.
In any event, the offer made by the respondent on 31 July 2012 was significantly more favourable to the appellant than was the ultimate outcome of the appeal. Thus it is difficult to avoid the conclusion that he acted unreasonably in failing to accept the offer of 31 July 2012. However it does not follow that all of the costs incurred after the expiry of that offer were attributable to the appellant’s unreasonable refusal of it.
It seems, that notwithstanding the appellant’s failure to accept the offer of 31 July 2012 within the specified period, the respondent was, on 20 February 2013, willing to settle the matter upon the terms of the heads of agreement and attached consent orders. This agreement collapsed because the respondent was unwilling to concede that there was any arguable appealable error in the primary Judge’s reasons. Although the respondent had agreed to the draft consent orders, she had not, as far as we can see, agreed to any such concession. It seems that the parties had not contemplated the need for it until the proposed consent orders were “requisitioned”, leading to the subsequent proceedings before Penfold J and in the Court of Appeal. The agreement of 20 February 2013 was, in a sense, frustrated by the Court’s view concerning the circumstances in which it could properly set aside the decision below and remit the matter for rehearing.
Thereafter, the parties continued to seek to settle the matter. Until sometime after 23 August 2013, the appellant continued to insist upon a concession by the respondent that there was arguable appealable error, a concession which she was unwilling to make.
This Court must now decide upon appropriate orders concerning the costs of the appeal. As far as the Court is aware there is no basis for interfering with any of the orders for costs already made in these proceedings, nor does the Court understand either party to seek any such variation.
The respondent submits that she ought to have the costs of the appeal, excluding any costs in respect of which any previous orders have been made, the costs incurred after 1 August 2012 to be taxed on an indemnity basis. The appellant submits that it should pay the respondent’s costs of the appeal on a party and party basis. Alternatively, if this Court is minded to make a special order as to costs, the appellant submits that such order should be limited to costs from 1 August 2012 to 20 February 2013, and that all other costs, other than those in respect of which orders have already been made, ought to be paid on a party and party basis.
The appellant’s reference to a “special order” as to costs appears to be to an order for costs on an indemnity basis. Both parties suggest that any special order should relate to costs incurred on or after 1 August 2012. The offer of 31 July 2012 indicated that in the event that the offer was not accepted prior to its expiry, and in the event of the appellant’s not succeeding on appeal, the respondent would seek an order for costs on an indemnity basis from the date of expiry of the offer, 28 August 2012. It is usual for an offeree to be allowed a period of time in which to consider the offer. The period during which the offer is to remain open may reasonably be taken to be the period allowed for such consideration. In those circumstances I would have thought that any special order ought to relate to costs incurred after 28 August 2012, not 1 August 2012. However it is appropriate that the Court act in accordance with the way in which the parties have conducted the litigation.
The appellant’s opposition to a special order relies upon numerous considerations as follows:
• his attempts to resolve the appeal proceedings;
• the respondent’s conduct;
• the inability to resolve the matter for reasons which were beyond the appellant’s control;
• that the respondent does not identify any “special or unusual feature” which would justify an award of “special” costs in her favour;
• that there was no imprudent refusal of an offer of compromise by the appellant;
• that the respondent did not set out the strength of her case;
• the marginal benefit to the appellant of the offer;
• that the appellant’s genuine attempts to resolve the proceedings were frustrated by the respondent and other causes beyond his control;
• the respondent’s conduct in agreeing to resolve the proceedings on a consent basis when she knew, or ought to have known that, without her agreement as to an arguable appealable error, it could not be resolved in that way;
• that the respondent declined to attempt to resolve the matter after the Court of Appeal had determined not to allow the appeal by consent;
• the respondent’s conduct in demanding withdrawal of the appeal, thereby incurring further unnecessary costs; and
• that the parties had resolved the matter, but such resolution could not be effected due to factors beyond the control of the appellant.
Obviously, there is a degree of repetition and/or overlap in these various propositions. In some cases, the submissions are as to disputed facts, particularly the assertion that the respondent declined to attempt to resolve the matter after the decision of the Court of Appeal, declining to set aside the judgment. Clearly, both sides made some attempts to resolve the matter. The stumbling block seems not to have been the amount to be received by the respondent. Rather, the problem seems to have been the appellant’s desire to set aside the judgment at first instance. In light of the view taken by the Court of Appeal, that objective could only have been achieved if the respondent conceded that the judgment was infected by appealable error, a step which she declined to take, and which she had not agreed to take. These complicating factors do not detract from the fact that the appellant failed to accept the offer dated 31 July 2012. We consider that the difference between the amount of the judgment and the amount of the offer was significant. In the end, the judgment was upheld. In our view the appellant acted unreasonably in not accepting the offer.
The appellant accepts that he should pay the respondent’s costs of the appeal, save to the extent that such costs have otherwise been dealt with by orders of the Court. The question in issue is whether any of the costs should be taxed on a basis other than “party and party”. The parties seem to agree that the appropriate alternative basis is “indemnity”. The parties also seem to accept that costs were incurred after the offer of 31 July 2012, and that taxation of such costs on a party and party basis will produce a less favourable result for the respondent than taxation on an indemnity basis. Conversely, taxation on the former basis would produce a more favourable result for the appellant than would taxation on the latter basis.
The respondent’s costs seem to fall into four categories, namely:
• costs incurred prior to 1 August 2012;
• costs incurred between 1 August 2012 and 20 February 2013;
• costs incurred between 20 February 2013 and 7 June 2013, when the Court of Appeal ordered that the appeal be listed for hearing; and
• costs incurred after 7 June 2013.
In a practical sense, the basis for taxation of the respondent’s costs should reflect the effective cause of their incurrence. However a broad approach should be taken to that question. Both parties have adopted such an approach. A number of factors led to the continuation of the appeal proceedings beyond 1 August 2012. They included:
• the appellant’s refusal to accept the offer of 31 July 2012;
• the agreement reached by the parties on 20 February 2013;
• the refusal by the Court of Appeal to give effect to that agreement;
• the subsequent conduct of each party; and
• the Court’s inability to offer an early hearing date
The parties agree that costs incurred prior to 1 August 2012 should be taxed on a party and party basis. As to costs incurred between 1 August 2012 and 20 February 2013 inclusive, we consider that such costs were attributable solely to the conduct of the appellant in refusing to accept an offer more favourable than the ultimate outcome of the appeal. Given the significant saving offered to him, he acted unreasonably in refusing the offer. Any reasonable assessment of his prospects of success on appeal would have led him to accept it. To the extent that the respondent incurred further costs during that period, they should be taxed on an indemnity basis.
Any costs incurred in the period from 21 February 2013 until 7 June 2013 were incurred as the result of the parties’ agreement on 20 February 2013. The Court of Appeal seems to have concluded that the agreement was misconceived, or at least that it could not be carried into effect without the parties’ agreement that there was appealable error.
We do not accept that the respondent should be punished in costs for her refusal to concede appealable error. It was no term of the agreement reached between the parties that she make such concession. There is no reason to believe that there was any such error which she should have acknowledged.
Had the agreement not been reached on 20 February 2013 then we infer that the matter would have been argued on that day and judgment delivered at some time thereafter. In those circumstances there would have been no significant further costs involved other than, perhaps, in taking the judgment and making submissions concerning costs. To the extent that costs in that regard have been incurred they would have been incurred in any event. However the result of the attempts to effect the agreement reached on 20 February 2013 was that the further conduct of the matter was effectively suspended until 7 June 2013 when the Court of Appeal made it clear that the consent orders would not be entered and that, as a result, the matter was to proceed to hearing.
In a sense, the agreement of 20 February 2013 was frustrated. Any costs incurred as a result of such frustration were more properly attributable to the parties’ conduct in entering into the agreement than to the appellant’s failure to accept the offer of 31 July 2012. Without wishing to take the analogy too far, it seems appropriate that any loss as a result of the view taken by the Court of Appeal should lie where it falls. In this case, that means that the respondent’s costs incurred during this period should be taxed on a party and party basis. The fact is that the respondent chose to enter into the agreement of 20 February 2013 rather than rely on her prospects of success on appeal and her earlier offer.
Any costs incurred by the respondent after 7 June 2013, may also be attributed to the agreement of 20 February 2013, in the sense that they would not have been incurred had the parties not reached that agreement. The matter would otherwise have been heard on that date. Much of the delay may be attributed to the Court’s inability to allocate an earlier hearing date, but neither party should be held responsible for that delay.
We will order that the appellant pay the respondent’s costs of the appeal incurred:
• up to 1 August 2012 on a party and party basis;
• thereafter, and up to 20 February 2013, on an indemnity basis; and
• thereafter, on a party and party basis.
Out of an abundance of caution, and to avoid any further applications, we also order that the respondent’s costs of the appeal include the costs of her submissions concerning the question of costs.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 19 December 2014 |
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