IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

BEFORE:  HIS HONOUR JUDGE BOWSHER Q.C.

BETWEEN:

CHARLES KAMENOU AND GABRIEL KAMENOU
(trading as Regency Developments) Plaintiffs

And

MICHAEL IVAN GEORGE DODSON
And 14 others : Defendants
 
Case number: 1995 TCC 1419
Dates of Trial: 12 January, 1999
Date of Judgment: 18 January, 1999
Daniel Crowley for the plaintiffs (Solicitors Greenwoods)
Martin Porter for the fifth defendant (Solicitors Lawrence Graham)
 
JUDGMENT

The text of the Judgment of His Honour Judge Bowsher Q.C. is as follows:

Introduction

1. On the date set for the trial of this action, 12 January, 1999 
representatives for the plaintiffs appeared and announced that the plaintiffs 
had accepted a payment into court made by the fifth defendant, Mr. Michael 
Dodson, the only remaining active defendant to this action.

2. The plaintiffs ask for a special order for costs against Mr. Dodson. The 
plaintiffs ask for an order that Mr. Dodson should be ordered to pay not only 
the costs of the action as against him but also the costs of bringing the action 
against the other 14 defendants and the costs paid to some of those other 
defendants on the discontinuance of proceedings against them.

3. I have reserved judgment because this application raises an important point 
of practice as to which there is some conflict in the authorities.
History

4. This action concerns alleged damage to a house by the action of tree roots.

5. The plaintiffs are the freehold owners and occupiers of a house and garden at 
12, The Avenue, London NW6. That house is a semi-detached property, the 
adjoining house being number 14. The 15 defendants are joined as parties because 
it is alleged that they have or have had interests in the whole or part of 
number 14. 

6. The plaintiffs allege that they first noticed damage by subsidence to number 
12 in May, 1989. By their Statement of Claim in this action, the plaintiffs 
allege that the damage was caused by "a number of trees, namely, a large 
sycamore tree, fruit trees and a black poplar tree" on the property of number 
14.

7. Number 14 is divided into flats. In recent years there have been several 
dealings in the freehold interest and the various leasehold interests in the 
property. 

8. The fifth defendant, Mr. Dodson, is the leasehold owner of the garden flat 
together with a part of the garden at the rear of the premises. The house at 
Number 14 does not occupy the whole of the width of the plot. Mr. Dodson's part 
of the garden is defined by a fence stretching from the outer rear corner of the 
house back some little distance into the rest of the garden and then at right 
angles to meet the common boundary. Lessees of other parts of the house have 
rights over the remainder of the garden.

9. In Mr.Dodson's garden there is a single tree, a pear tree. In the remainder 
of the rear garden of number 14 there are a Poplar tree, a flowering cherry 
tree, and a sycamore tree, none of them being particularly close to number 12. 
In addition, quite close to number 12, in the small front garden of number 14 
between the house and the road, there is a sycamore tree. In the rear gardens of 
number 12 and the adjoining garden of number 10 there are several trees.

10. Before bringing proceedings, solicitors for the plaintiffs made searches at 
the Lands Registry and also made enquiries of the solicitors for a number of the 
defendants, including the fifth defendant. The plaintiffs' solicitors were 
concerned to find out both who were the leaseholders over a period of years and 
the terms of their leases. Those solicitors were concerned to see the terms of 
the leases to ascertain what were the responsibilities of the various 
individuals concerned with regard to the trees in different parts of the garden. 
At that stage, the finger of blame was not pointed at any particular tree or 
trees. Messrs. Amhurst Brown Colombotti, then acting on behalf of a number of 
leaseholders stated that it was their clients' contention that the parts of the 
property where the trees were situated were not part of their demise and 
referred the plaintiffs to the freeholders, St. Mary's Estates Limited, who 
later became the third defendants to this action. The leaseholders' solicitors, 
on the instructions of their clients, including Mr. Dodson, refused to give any 
further information.

11. By employing enquiry agents, the plaintiff's' solicitors discovered that the 
various defendants had or had previously had some interest in the property, or 
had lived there. Before bringing these proceedings, the plaintiffs' solicitors 
had not discovered the terms of the leases. There is some dispute as to whether 
they could have done so by further enquiry from the Lands Registry.

12. This action was begun by Writ dated 26 October, 1995. The Writ was renewed 
on three occasions because there was difficulty in finding some of the 
defendants. In the event, the 1st, 8th, 9th, and 10th defendants were never 
served.

13. A Statement of Claim was served on 27 March, 1996. The defendants served 
with proceedings were ordered to serve defences limited to issues related to 
their alleged interests in the property. Defences relating to matters of 
causation and the like were deferred until after the service of further and 
better particulars of the Statement of Claim specifying, among other matters, 
the precise location of the sycamore tree and the poplar tree referred to in the 
Statement of Claim. 

14. Limited Defences were served on behalf of the 2nd, 3rd, 4th, 5th, 6th, 13th, 
and 14th defendants in September and November, 1996. Those Defences and 
documents annexed to them made a full disclosure of the interest of the 5th 
defendant and of individuals of whom he had knowledge.

15. By his limited defence, the 5th defendant stated that until service of the 
further and better particulars it was impossible for him to address the matter 
of responsibility for the tree or trees the subject of the action. That was a 
reasonable statement because the trees had not been adequately defined. The 5th 
defendant did, however, in his limited defence state that he was the assignee of 
a lease of the garden floor flat and of a part of the garden; and he annexed a 
copy of the lease to the Defence. That lease, of course, defined that part of 
the garden for which he was responsible. The 5th defendant also stated that the 
lease had been granted, not by St. Mary's Estates Limited but by the 4th 
defendants Ansoll Estates Limited. The 5th defendant also expressed the belief 
that the freehold had since passed to a Mr. Shamsul Alam Chowdhury. There was 
also annexed to the limited Defence a copy of a tenancy agreement of the garden 
flat between the 5th defendant and the 7th defendant. In the same Defence, it 
was also stated that the 6th defendant had never had a legal interest in the 
garden flat but had lived there with the 5th defendant for 6 months until her 
marriage.

16. Despite the giving of this information, the action proceeded against some 
defendants other than the 5th defendant.

17. For some reason unknown to me, it was not until 1 May, 1997 that the 
plaintiffs served the Further and Better Particulars of Statement of Claim to 
which I have referred. Although the plan annexed to those particulars showed the 
pear tree to which I have referred, it was plain from the request for 
particulars, that the defendants' advisers do not seem to have thought it 
important, and they understandably concentrated attention on the sycamore tree 
and the poplar tree. The plaintiffs by their answer to the request said nothing 
to indicate that the pear tree was of any importance. 

18. At some stage, Mr. Chowdury was made defendant to fresh proceedings which 
were consolidated with the existing proceedings. The plaintiffs obtained 
judgment against Mr. Chowdury without trial, though there is some doubt whether 
he has the means to satisfy that judgment. The proceedings against Mr. Chowdury 
are not relevant to the application now before me.

19. In June, July and September, 1997, the plaintiffs reached agreements with 
all of the effective defendants other than the 5th defendant that the 
proceedings against them should be discontinued on terms that the plaintiffs pay 
their costs. In some cases those costs were in an agreed amount and in other 
cases they were to be taxed. Consent orders were made accordingly.

20. Pursuant to an order of the Court, there were meetings between experts for 
the plaintiffs and the 5th defendant. On 17 December, 1998, again pursuant to an 
order of the Court, the experts for the plaintiffs and the 5th defendant 
respectively signed an agreed statement recording matters on which they were 
agreed and matters on which they disagreed. While the experts were agreed that 
the pear tree was not alone responsible for the damage to number 12, they were 
agreed that it did "possibly" make some contribution to the extent of the 
damage. They were agreed that if it was established that the pear tree had 
encroached and caused damage to the property that contribution would be 7% of 
the total relevant costs. The experts disagreed as to what the total relevant 
costs were.

21. The following day, on 18 December, 1998, the 5th defendant paid into Court 
the sum of £5,000. On the last day for acceptance of that payment in, the 
plaintiffs gave notice of acceptance pursuant to RSC Order 22 rule 3. The notice 
of acceptance was in the following terms:
"Take Notice that the plaintiff accepts the sum of £5,000 paid into Court by the 
Defendant Michael Dodson which sum is in full and final satisfaction of all the 
causes of action in respect of which the plaintiffs claim." 

22. Having given notice of acceptance of the money in Court, the plaintiffs' 
solicitors gave notice that application would be made on the day appointed for 
the first day of the trial, 12 January, 1999 for the special order for costs 
which is now sought.

23. By the time the payment was made into court on behalf of the 5th defendant, 
the 5th defendant was the only effective defendant remaining in the proceedings.
The Law 

24. For the 5th defendant it is submitted that I do not have jurisdiction to 
make the order sought by the plaintiffs: alternatively, it is submitted, if I do 
have jurisdiction, in the circumstances of this case, I should not make the 
order sought.

25. Where there are multiple defendants sued jointly or in the alternative, the 
effect of acceptance of money paid into Court is provided for by Order 22 rule 
4:

"(1) Where a plaintiff accepts any sum paid into Court and that sum was paid 
into Court-
(a) by some but not all of the defendants sued jointly or in the alternative by 
him, or
..............
the money in Court shall not be paid out except under paragraph (2) or in 
pursuance of an order of the Court, and the order shall deal with the whole 
costs of the action or of the cause of action to which the payment relates, as 
the case may be.

(2) Where an order is required under paragraph (1) only by reason of paragraph 
(1)(a) then if, either before or after accepting the money paid into Court by 
some only of the defendants sued jointly or in the alternative by him, the 
plaintiff discontinues the action against all the other defendants and those 
defendants consent in writing to the payment out of that sum, it may be paid out 
without an order of the Court."

26. The purpose of O.22 r.4 is to protect defendants who have not made a payment 
in from being left without any provision for their costs. The position of those 
co-defendants can be seen from Order 22 rule 3(4).

27. Order 22 r.3(4) provides:

"On the plaintiff accepting any money paid into Court all further proceedings in 
the action or in the specified cause of action or causes of action, as the case 
may be to which the acceptance relates, both against the defendant making the 
payment and against any other defendant sued jointly with or in the alternative 
to him shall be stayed."
But that stay is only a stay of further proceedings to determine the substantive 
rights of the parties and does not extend to questions of costs: Rookes v. 
Barnard No. 2 [1966] 1 QB 176 per Browne J. If the costs of the co-defendants 
are not provided for on a discontinuance by the plaintiff, those co-defendants 
might in a suitable case apply for judgment with costs against the plaintiff: 
Reardon Smith Line Ltd. v. Cayzer Irvine and another (1929) 46 TLR 146. 

28. The Reardon Smith Line case is of some interest because it was decided in 
1929, before the precursor of Order 22 r. 4 was brought into being. The 
precursor of the present Order 22 rule 4 was brought into being by Order R.S.C. 
(No.1), 1993 as an amendment to the 1883 Rules of the Supreme Court and is to be 
found in those rules from 1933 as Order 22 rule 4(3). In the Reardon Smith Line 
case, the first defendant was sued as principal, alternatively as agent for the 
second defendant. The second defendant paid into court the whole of the sum 
claimed and that payment in was accepted by the plaintiffs. It was held by 
Wright J. that the costs between the plaintiffs and the second defendants would 
be dealt with by the Rules of Court, and the first defendant was entitled to 
judgment with costs against the plaintiff.

29. Does Order 22 r. 4(1)(a) apply to this case? It certainly would have applied 
if the payment in had been made before the action had been withdrawn against all 
the other defendants. Counsel has submitted that the rule does not apply because 
at the time the 5th defendant stood alone and was not at that time "sued jointly 
or in the alternative". I think that is right. That that is the intention of the 
rule is, I think, shown by the use of the words in paragraph (2), "...if either 
before, or after accepting the money paid into Court by some only of the 
defendants ..." If that were not so, the plaintiffs in this case could only take 
the money out of Court without an order of the Court if the plaintiffs obtained 
the consent in writing of all the other defendants. I have not been told that 
the consent in writing of the other defendants has been sought, and it is 
certainly not recorded in the documents recording the withdrawal of the action 
against them on terms. Indeed, such consent could not have been given at that 
time because no payment had then been made into Court.

30. If Order 22 r.4 had applied, any order made by me regarding withdrawal of 
the money in Court would have been required by the rule to deal with the whole 
costs of the action, because paragraph 4(1) makes a mandatory requirement to 
that effect, viz. "... the order shall deal with the whole costs of the 
action..." That jurisdiction imposed on me by rule would include, as I 
understand it, jurisdiction to make an order in the form of a Bullock Order or a 
Sanderson Order, and so would include jurisdiction to make or refuse an order of 
the sort now requested of me.

31. In circumstances where O. 22 r. 4(1) does not apply, do I have jurisdiction 
independently of any express rule to make the order requested?

32. The Court has a general jurisdiction as to costs provided by section 51(1) 
and (3) of the Supreme Court Act, 1981 as amended by the Courts and Legal 
Services Act, 1990:

"(1) Subject to the provisions of this or any other enactment and to rules of 
court, the costs of and incidental to any proceedings in " the High Court "shall 
be in the discretion of the court."
(3) The court shall have full power to determine by whom and to what extent the 
costs are to be paid."
RSC Order 62 rule 2(4) provides:
"The powers and discretion of the Court under section 51 of the Act ...shall be 
exercised subject to and in accordance with this order."

33. It is common ground that if I make no special order for costs, the 
plaintiffs are entitled without any express order of the Court to have their 
costs of the action against the 5th defendant taxed and paid by the 5th 
defendant. That entitlement is provided by RSC Order 62 rule 5(4):

"Where a plaintiff by notice in writing in accordance with Order 22 rule 3(1) 
accepts money paid into court in satisfaction of the cause of action " in 
respect of which he claims " he shall be entitled to his costs of the action 
incurred up to the time of giving notice of acceptance."

34. I have to decide whether Order 62 r.5(4) precludes the Court from exercising 
its general jurisdiction in the present circumstances. Rule 5(4) gives the 
plaintiff a right to certain costs without order. Does that exclude his applying 
for an order to a different effect under the general jurisdiction of the Court.

35. In QBE Insurance (UK) Limited v. Mediterranean Insurance and Reinsurance 
Limited (1992) 1 WLR 573, Webster J. held that the automatic right to costs 
without order given by Order 62 rule 5(4) must be applied in accordance with a 
restricted interpretation of the words of the rule. At page 576 F, Webster J. 
said:
"In order to avoid injustice, therefore, in the application of rule 5(3) and (4) 
the words 'his costs of the action' need to be construed as meaning, in 
paragraph (3) 'his costs of the action as against that party' and in paragraph 
(4) 'his costs of the action as against that defendant'. I do not see how this 
construction can do injustice to anyone. It is convenient to note that the 
provisions of rule 5 create an automatic right to costs without any order; in 
those circumstances the order should, in my view, be strictly construed so as to 
avoid any possible injustice, not in any particular case, but in any particular 
category of cases. I therefore construe the words 'his costs of the action' in 
paragraph 4 in the way I have just described."
Thus far, counsel for both parties are agreed with Webster J.'s construction. I 
also respectfully agree. What follows in the judgment of Webster J. is, however, 
questioned by counsel for the defendants. Webster J. continued: 
"Construed in that way, the rule is much less likely to cause injustice than the 
wider and more literal construction and, if it can cause any injustice at all, 
it would be open to a plaintiff, who could reasonably claim to be entitled to 
recover from a defendant who had paid in his costs against the other defendants, 
to apply for such an order which the court would, in my view, have jurisdiction 
to make."

36. In making that statement, Webster J. had in mind, and distinguished, a 
decision of the Court of Appeal in Hudson v. Elmbridge Borough Council and 
others [1991] 1 WLR 880. Hudson was an appeal from an Official Referee, Judge 
Fox-Andrews Q.C. In that case, there were six defendants and a payment in was 
made by one of them, the third defendant. The first point of importance is that 
the Court of Appeal held that Order 22 rule 4(1) did not apply because the 
defendants were not sued jointly. The case was thus a case where Order 62 rule 
5(4) applied. The third defendants were sued in contract and also in tort. The 
third defendants made the payment in in respect of the claim in contract only. 
That payment was accepted by a notice which stated that the plaintiffs abandoned 
their claim in tort against the third defendants. The plaintiffs applied for an 
order that the third defendants pay the plaintiffs the costs of the action 
against the third defendants (not limited to the costs of the cause of action in 
contract). The third defendants applied for an order that the costs paid to the 
plaintiffs be limited to the costs of the cause of action in contract; and the 
third defendants also asked for an order that the plaintiffs pay the third 
defendants' costs of the cause of action in tort. Stuart-Smith L.J. reviewed the 
history of the rules and regretted the fact that there had been removed from O. 
62 r. 5(4) the words "unless the court or a judge otherwise order". Stuart-Smith 
L.J. held that as Order 22 rule 4 did not apply, Order 62 rule 5(4) had to be 
applied. In that rule "his costs of the action" meant the whole costs of the 
action as against the third defendants and the Court had no discretion to make 
any different order. The plaintiff was therefore entitled to be paid the costs 
of the cause of action in tort against those defendants in addition to the costs 
of the cause of action in contract. Stuart-Smith L.J. said, at page885H:
"While I agree that if the matter falls to be dealt with under Order 22 rule 4 
the court has a discretion as to costs which is not fettered by Order 62 rule 
5(4), this provision does not, in my judgment assist the third defendants in 
this case."
And at page 888G he said:
"What is surprising and undoubtedly involves injustice in this case to the 
defendants is that the defendant's right to apply to the court for a different 
order has now been removed from Order 62 rule 5(4)."

37. In Hudson v. Elmbridge, what was contended for by the third defendant was 
directly contrary to the express words of Order 62 rule 5(4). Rule 5(4) dictated 
that the plaintiff was entitled to the costs of the action against the third 
defendants, whereas the third defendants were arguing that the plaintiff should 
only have the costs of one of two causes of action and further that the third 
defendant should have the costs of the other cause of action. It was therefore 
not surprising that the Court of Appeal found that the general discretion of the 
Court was overridden by the express words of the Rule, that discretion having 
been granted by statute which expressly made the discretion subject to Rules of 
Court. But, given that where a plaintiff accepts money paid into court in 
circumstances covered by Order 62 rule 5(4) the plaintiff is entitled to the 
costs provided for by that Rule and the Court has no discretion to award him a 
lesser amount, can the court in those circumstances nonetheless in the exercise 
of its discretion award him a greater amount by way of costs? Can the court say, 
"You are entitled to statutory costs and we also in addition award you 
discretionary costs?" That is what the plaintiffs are in effect (though not in 
terms) asking for in the present action. The Rule does not expressly limit the 
discretion to prevent an award of a greater amount: does it do so by 
implication? The Court of Appeal did not consider that question in Hudson v. 
Elmbridge, it being unnecessary to do so.

38. In QBE Ltd. v. Mediterranean Insurance, at page 576H, Webster J. commented 
on the decision of the Court of Appeal in Hudson v. Elmbridge as follows:
"I do not regard the Court of Appeal's decision in Hudson v. Elmbridge Borough 
Council as in any way inconsistent with the construction that I have put upon 
rule 5(4) because in that case the court was not concerned with the problem that 
arises in the present case. In that case, the plaintiff was seeking to recover 
all his costs of all causes of action against one only of six defendants. He was 
not seeking to recover from one defendant all his costs of all his causes of 
action against all defendants. But I respectfully echo the regret expressed by 
the Court of Appeal about the omission from the new rule, which came into force 
in 1986, of the words "unless the court or judge shall otherwise order".

39. Webster J. was plainly right when he said that the decision of the Court of 
Appeal does not affect his construction of the words "his costs of the action as 
against that defendant" in rule 5(4). The Court of Appeal had decided that 
"costs of the action" meant "costs of the action" as opposed to costs of one of 
two or more causes of action: Webster J. added that "costs of the action" was 
limited to the costs of proceeding against the paying-in defendant and did not 
include the costs of proceeding against other defendants. Webster J. plainly 
considered that a plaintiff could apply for an additional discretionary order to 
recover from the paying-in defendant the plaintiff's costs against other 
defendants, but that was not necessary to his decision. The Court of Appeal did 
not rule that rule 5(4) was a fetter on the general discretion as to costs 
beyond the specific facts of that case, namely where the plaintiff was asking 
for an order directly contrary to the express terms of rule 5(4). 

40. In Hodgson v. Guardall Ltd. and others [1991] 3 All ER 823, Otton J., 
reciting a note in the Supreme Court Practice, held that, in a case where Order 
22 rule 4 did not apply, on his construction of the terms of Order 62 rule 5(4) 
he had the power to order a defendant who had made a payment into court to pay 
the plaintiffs costs of proceeding against other defendants together with the 
costs of other defendants. Otton J. said, at page 828:
"It seems to me that the expression 'his costs' [in Order 62 rule 5(4)] permits 
the court to order the payment by the defendant making the payment in of costs 
over and above those directly incurred by the plaintiff in bringing the action 
against the paying in party alone. " In my judgment the discretion given to this 
Court and the power given to this Court is very wide indeed and is certainly 
wide enough not only to order the paying-in defendant to pay the costs of the 
co-defendants but also to cover the plaintiff's costs incurred against the 
co-defendants if the circumstances justify."

41. The decision in Hodgson v. Guardall was given some months before the 
decision of the Court of Appeal in Hudson v. Elmbridge and others and it does 
not appear to have been cited to the Court of Appeal or to Webster J. Otton J.'s 
decision was on facts raising issues similar to those in the case before me. 
However, the decision of Otton J. appears to have been dependent on a 
construction of Order 62 r. 5(4) which differed from the construction favoured 
by Webster J. I prefer the construction favoured by Webster J. and therefore 
find the decision in Hodgson v. Guardall unhelpful.

42. These rules were considered again by Judge Fox-Andrews in Fell v. Gould 
Grimwade Shirbon Partnership and others (1992) 36 Con LR 62. After making an 
extensive and helpful review of the authorities, including those to which I have 
referred, and applying the decision of QBE Limited v. Mediterranean Insurance, 
Judge Fox-Andrews held that where Order 22 rule 4 does not apply, and Order 62 
rule 5(4) does apply, the court has no discretion. (In the first line on page 71 
of that report, the reference to Order 62 rule 4 is plainly an error and should 
read Order 22 rule 4). At page 70 Judge Fox-Andrews said:
"With respect to Otton J. in a case falling within Order 62 rule 5(4), to which 
because the causes of action against two or more defendants are several Order 62 
[sic] rule 4 does not apply, I hold that a court has no discretion. Either the 
words 'his costs of the action' relate in every case to the costs incurred by 
the plaintiffs against other defendants or in no case does it do so."
Judge Fox-Andrews apparently took the view that the only course which could be 
followed would be the course which would automatically follow notice of 
acceptance. 

43. There was a further feature of Fell v. Gould Grimwade. Although the 
plaintiff wished to accept the money paid into court and could have given notice 
of acceptance of payment in within the time limited by the rules, the plaintiff 
declined to do so and instead made application to the Court. Accordingly, 
because notice of acceptance had not been given, Order 62 rule 5(4) did not 
apply, and the plaintiff submitted that because rule 5(4) did not apply, the 
Court had an unfettered discretion under Order 62 rules 2 and 3. Judge 
Fox-Andrews appears to have accepted that that was so, but he held that only in 
the most compelling circumstances would he exercise that general discretion in a 
manner different from the manner in which Order 62 rule 5(4), on his 
construction, ought to be applied.

44. In Carrs Bury St. Edmunds Limited v. Whitworth Partnership and another 
(1996)13 Const LJ 199, Judge Esyr Lewis Q.C. again reviewed the authorities and 
followed the decision of Judge Fox-Andrews in Fell v. Gould Grimwade Shirbon 
Partnership. Judge Esyr Lewis said, at page 205:
"I respectfully agree with Judge Fox-Andrews' conclusion that, where a plaintiff 
accepts a payment in within the time limited by Order 22 rule 3(1) in the 
prescribed form (i.e. in a case where there is only one defendant or where the 
defendants are severally sued), the court has no discretion to make any order 
other than that described in Order 62 rule 5(4). In my judgment, the court has 
no part at all to play where a plaintiff validly accepts a payment in made by 
one of severally sued defendants. The action against the paying in defendant is 
automatically stayed and the plaintiff is entitled to take the sum paid in 
without any order of the court and is similarly entitled to his costs, as 
defined in Order 65 rule 5(4) which he can proceed to tax, also without any 
intervention by the court. The plaintiff's action against the other defendants 
continues. In so far as Webster J. held that the court has jurisdiction to 
entertain an application by a plaintiff for some different order as to costs 
than provided for in rule 5(4) where a plaintiff has accepted the payment in 
accordance with the provisions of Order 22 rule 3(1), I must respectfully 
disagree. It also follows from what I have said that I agree with Judge 
Fox-Andrews and find myself unable to accept Otton J.'s view that Order 62 rule 
5(4) enabled him to exercise a discretion on costs as he did in the Hodgson 
case."

45. I agree with Judge Fox-Andrews and Judge Esyr Lewis. In its context, it is 
plain in my view that the intention of Order 62 rule 5(4) is to provide that the 
only way in which the court can exercise its discretion as to costs after 
acceptance of a payment in in circumstances to which rule 5(4) applies is by 
applying the procedure of Order 62 rule 5. A most important part of the context 
is Order 62 rule 5(1) which provides for the automatic procedure as to costs:
Rule 5(1): "In each of the circumstances mentioned in this rule an order for 
costs shall be deemed to have been made to the effect respectively described 
and, for the purposes of section 17 of the Judgments Act 1838, [making provision 
for interest] the order shall be deemed to have been entered up on the date on 
which the event which gave rise to the entitlement to costs occurred".
Plainly, no application to the Court is envisaged and there is no distinction 
between statutory or automatic costs and discretionary costs. There is one 
discretion, and where Order 62 rule 5(4) applies, that rule prescribes how the 
discretion is to be exercised.

46. The effect of Order 62 rule 5(1) is that the plaintiffs in this action are 
seeking variation of an order deemed to have been entered up on the date of 
their notice of acceptance only a few days ago, that order having been made in 
terms defined by a Rule of Court which the plaintiffs voluntarily brought into 
operation. As I read the Rules, their intention is that the plaintiffs should 
not be permitted to do that. The plaintiffs could have avoided that situation by 
refraining from giving notice of acceptance and making application to the Court 
instead, but I agree with Judge Fox-Andrews that if they took that course, it 
should only be in compelling circumstances that the Court should make any order 
differing from the order automatically applied by Order 62 rule 5(4).

47. I hold that I do not have any discretion to make the order requested by the 
plaintiffs.

48. Mr. Michael Crowley, counsel for the plaintiffs, who very properly drew the 
decisions of Judge Fox-Andrews and Judge Esyr Lewis to the attention of the 
Court, sought to distinguish them on the basis that those decisions concerned 
actions where the liability alleged was several whereas in the present case the 
15 defendants were sued jointly or in the alternative. That distinction does not 
assist the plaintiffs in this action. It is correct that the defendants were 
originally sued jointly or in the alternative, and had there been more than one 
defendant still remaining as a party to the action when the payment was made 
into court, Order 22 rule 4 would have applied. But the fact is that when the 
payment into court was made, it was made by a defendant who was then sued alone 
and Order 22 rule 4 did not apply: that was the position reflected in the 
plaintiffs' notice of acceptance. The fact that there had previously been other 
defendants sued jointly or in the alternative does not give the court a 
discretion where none would otherwise exist under Order 62 rule 5(4), though it 
does indicate another set of circumstances where injustice may arise from the 
absence of such discretion. However, no injustice arises in this case because, 
for reasons which I shall give, if I had had a discretion, I would not have 
exercised it in favour of the plaintiffs in this case.

49. If I had jurisdiction to make an order in the terms asked by the plaintiffs, 
I would have refused to make such order for the following reasons.

50. For the plaintiffs it is submitted that it was reasonable for the plaintiffs 
to institute proceedings against all the defendants and to continue those 
proceedings for as long as they continued.

51. The plaintiffs stress the lack of information given by the 5th defendant as 
well as other defendants regarding title to the premises in response to requests 
for information made by the plaintiffs' solicitors. For the defendants, it is 
said that it was not easy to be forthcoming until the plaintiffs had identified 
the trees of which they made complaint. However, the 5th defendant and other 
defendants gave very full information as to title in their Defences in September 
and November, 1996. In his written submissions, counsel for the plaintiffs 
wrote:
"Following service of those Defences the plaintiffs reassessed the case and 
withdrew the claims against defendants who were not in ownership or control of 
the trees at number 14 at the material time."
But it was not until almost a year later, when the work of the experts was much 
further advanced, that the plaintiffs released the other defendants from the 
action. I infer that the prime reason for joining so many Defendants was that 
the plaintiffs did not make sufficient investigation of the causation of the 
subsidence before starting proceedings. I am not impressed by the assertion made 
on behalf of the plaintiffs that it was not until the 5th defendant served his 
expert's report in November, 1998 that he identified which trees he accepted as 
being in his ownership or control. That expert's report was served after the 
other defendants had been released from the action: in any event, any statement 
made in it as to responsibility for the pear tree would have been of little 
significance since documents of title annexed to the limited Defence in 
November, 1996 made clear his responsibility for any tree in his garden, namely 
the pear tree. Moreover, observation of the premises would have shown anyone 
interested that the pear tree was in an enclosed part of the garden adjacent to 
the garden flat occupied by the 5th defendant, and if attention had been focused 
on the pear tree, the number of possible defendants would have been very much 
restricted, and the defendant might very well have disclosed the terms of his 
lease before action. This seems to have been a case where, possibly because of 
the impending expiry of the limitation period, proceedings were started against 
all possible defendants without sufficient expert investigation of causation of 
the damage complained of.

52. I am not satisfied that there would be any good reason to make the order 
requested by the plaintiffs even if I had jurisdiction to make such an order.

Conclusion

53. I do not have jurisdiction to make the order for which the plaintiffs ask. 
If I did have such jurisdiction, in the exercise of my discretion I would not 
make such an order. The plaintiffs are therefore left with their right under RSC 
Order 62 rule 5(4) to tax their costs of the action as against the 5th defendant 
incurred up to the time of the giving of the notice of acceptance of the payment 
into court. The costs of the other defendants have already been provided for by 
agreement with those defendants.

54. The costs of the action incurred after the time of the giving of the notice 
of acceptance, including the costs of this application, are to be taxed and paid 
by the plaintiffs to the 5th defendant and there is to be a set-off of the two 
sets of costs one against the other.


HIS HONOUR JUDGE BOWSHER Q.C.