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Marcos v Goodfellow

12 June 2000
The issues

Whether or not the Judge was right to adjourn the question of costs for determination of the District Judge in circumstances where there was no other issue before the parties.

The facts

Judge Rice of Southend County Court adjourned an action involving a trespass to land generally. The claim arose out of a boundary dispute. At trial one of the parties sought an adjournment on the grounds that he had only just received an expert report from the other side. The Judge refused to adjourn stating that the report should not have taken long to analyse. He heard no evidence but visited the property and decided it was all a storm in a teacup. The judge did not return to Court. Consequently no order was made. The Claimant then wrote to the Defendant asking for confirmation that a damaged fence would be re-built and that all legal fees would be paid. There was no response and the Claimant applied for an order. Re-convening the case. The case was re-listed for directions. At the Directions Hearing the District Judge took the view that the action should be stayed for a month as to enable the Claimant to consider a further offer of the Defendants. The Claimant’s son protested and eventually the District Judge withdrew the son’s permission to be on the record. By the time the Appeal came before Judge Rice the Defendant had sold the property and the new owners had written a conciliatory letter to the Claimant. The Judge asked why the action should continue and adjourn the action generally allowing any application of costs to be remitted to the District Judge.

The Claimant appealed.

The decision

1. It was understandable as to why the Judge revoked the son’s permission to represent the mother.

2. However, the Judge’s Order had a difficulty in that someone had to determine what had happened before any Costs Order could be made. The issue of costs was not simply a matter which could be dealt with on an Assessment and justice required that there be a fair trial of the issues in dispute.

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