Colwill v European Heritage Ltd
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE FLOYD
- LORD JUSTICE DAVIS
Areas of Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
In Mr. Colwill's case against European Heritage Limited, the initial dismissal and costs order were upheld, but an erroneous counterclaim judgment was rectified. Appeals focusing on procedural errors led to the allowance of the appeal by consent on the counterclaim issue, yet costs were awarded to the respondents due to Mr. Colwill's irrelevant disclosure requests and delays. The judgment underscored the importance of formally raised counterclaims, the relevance of disclosure requests, and procedural adherence in litigation.
J U D G M E N T
LORD JUSTICE FLOYD: By his order following a trial on 23 and 24 February 2012, HHJ Reid QC, sitting in the Guildford County Court, dismissed the claim of Mr Colwill and ordered him to pay the costs in the amount of some £23,000. However, he purported to award the defendant, European Heritage Limited, the sum of £1,580 on a counterclaim, when that sum had only been raised by way of a potential set off. As the claimant failed, no question of a set off could arise.
Mr Colwill served a notice of appeal seeking to set aside the judge's order dismissing the claim, ordering him to pay costs and awarding the sum of the purported counterclaim. The claim concerned whether the defendant was liable for rent in respect of premises at Parsons Green in London. The details of the claim are not relevant for the purposes of this appeal.
At an oral hearing on 17 October 2012 Toulson LJ, as he then was, firstly refused permission to appeal against the dismissal of the claim. Having carefully considered the grounds argued, Toulson LJ said this:
"In summary I conclude that the appeal against the dismissal of the claimant's claim is hopeless and that permission must be refused."
Toulson LJ also refused permission to appeal against the judge's costs order.
Toulson LJ did, however did grant permission to appeal in respect of the money judgment in favour of the defendant on the purported counterclaim. About that, he said this:
"I turn to the money judgment, which the judge made in favour of the defendant. Here there was a plain irregularity. The indebtedness of the defendant to the claimant had been pleaded as a set off and not a counterclaim. That this was no mere oversight or technicality is clear from the defendant counsel's written opening in which he said:
'The defendant would finally note that there is a set off sought if any sums are due to the claimant as a result of unpaid invoices by Bath 1959 owed to the defendant in the sum of £1,058.34. It is not clear if these are disputed. However, this is not pleaded as a counterclaim and absent any liability of the defendant to the claim of the claimant, this need not trouble the court.'.
So the defendant was making expressly clear that this indebtedness was advanced only by way of set off and not by way of counterclaim if the claim itself failed. One can only surmise that the judge must have not recollected this when he gave his judgment. He took it as being simply not a matter of dispute that the money wa