Wade v Liverpool City Council

The plaintiff, Wade, sought to vary costs orders made by the Court of Appeal in proceedings against the first and second defendants, Liverpool City Council. The dispute concerned the apportionment of the plaintiff's costs as between the two defendants, following an earlier appeal that had varied initial apportionment orders. The Court of Appeal was asked to determine whether the original orders had rendered the defendants jointly and severally liable for the plaintiff's costs, and whether, in the exercise of discretion, the court should decline to vary those orders.

The Court was required to consider the effect of the original costs orders made on 9 February 2004, specifically whether they established joint and several liability for the plaintiff's costs between the first and second defendants. It also had to determine whether to exercise its discretion to vary those orders in light of the subsequent application by the plaintiff. The Supreme Court Rules 1970, specifically Part 40 rule 9(3), were relevant to the court's power to vary its own orders.

The Court reasoned that the original orders, as made, did not clearly establish joint and several liability for the plaintiff's costs between the defendants. Instead, they had made orders as between the respective defendants, reflecting an apportionment of liability. The Court exercised its discretion to vary the previous orders to clarify the position. The variation aimed to ensure that both defendants remained liable to the plaintiff for the plaintiff's costs, while also clearly delineating the apportionment of those costs as between the first and second defendants.

The Court ordered that the original costs order be varied. The first and second defendants were to pay the plaintiff's costs of the Local Court and District Court proceedings. Furthermore, as between themselves, the first defendant was to bear the plaintiff's costs of the Local Court proceedings and the District Court proceedings prior to the joinder of the second defendant. For the District Court proceedings subsequent to the joinder of the second defendant, the first defendant was to pay 45% of the plaintiff's costs, and the second defendant was to pay 55%. The first opponent was also ordered to pay the claimant's costs of the Notice of Motion on an indemnity basis.