Sarvenaz Fouladi v Darout Ltd (2019)
In a case concerning noise nuisance in which the claim against the first to third defendants succeeded, but the claim against the fourth defendant failed, a judge had been entitled to make a Bullock order requiring the unsuccessful defendants to meet the costs ordered to be paid by the claimant to the successful defendant. It had been reasonable for the claimant to join the fourth defendant as a party to the action because the first to third defendants had sought to blame the fourth defendant for the nuisance.
The first to the third defendants appealed against a Bullock order made in a claim concerning noise nuisance.
The first defendant was the lessee of a flat which was occupied by the second and third defendants. The fourth defendant was the landlord. The claimant lived in the flat below. She complained of noise nuisance caused by works undertaken to the flat above, which had reduced the sound insulation. The first defendant claimed that the fourth defendant landlord had granted a licence for the works to be carried out. That argument failed at trial and the judge found that the first defendant was in breach of the lease, which required consent to be obtained from the fourth defendant prior to carrying out any alterations to the property. The claim against the fourth defendant was therefore dismissed, and the claimant was liable for the fourth defendant's costs. However, the judge decided to make a Bullock order, transferring the liability to the first to third defendants to meet the costs ordered to be paid by the claimant to the fourth defendant, as well as the claimant's costs of her claim against the fourth defendant.
Appropriate test to be applied - Costs appeals were relatively rare. An appeal court could not put itself in the position of the trial judge who, as in the instant case, heard a trial lasting several days, and inevitably knew much more about the progress and conduct of the case than could possibly be learnt on an appeal. Counsel on appeal could do no more than show to the court selected highlights, which appeared to favour their case. Only the trial judge would have sufficient feel for the overall conduct of the case fairly to deal with costs. For a costs appeal to succeed, the appeal court had to be persuaded that no judge who was properly instructed as to the law with regard to the relevant facts could have reached the relevant conclusion, MTI Trading Systems Ltd (In Administration), Re  3 WLUK 636 applied. In the exercise of a discretion, it would have to be established that the judge had exceeded the generous ambit of the discretion available to him, G v G (Minors: Custody Appeal)  1 W.L.R. 647 applied. The defendants' appeal faced a double hurdle: first, there was the difficulty that costs appeals were appeals from the discretion of the judge. Second, the complaint concerning the costs order depended on whether the judge wrongly weighed the relevant factors when concluding that the decision to join the fourth defendant was reasonable. That was a challenge to a multi-factorial value judgement. There were many warnings in case law, at the highest level, that an appellate court should not interfere with findings of fact, or with the evaluation of those facts, unless compelled to do so (see paras 10-11, 13, 16 of judgment).
Should the Bullock order be overturned? The Bullock order should not be overturned. The judge had been obliged to take into account not only the reasonableness of the initial decision by the claimant to join the fourth defendant as a party to the action, but also the entire conduct of the proceedings. Had he not done so, he could potentially have ignored factors of relevance to the order that he was asked to make. The judge was entitled to conclude that it was the first to third defendants' conduct, both prior to the proceedings and during the course of them, that had led to the dispute and to the litigation, and that if permission had been properly obtained from the fourth defendant, none of it would have occurred. In circumstances where the first to third defendants sought to blame the fourth defendant, it was perfectly reasonable to join the fourth defendant, and to head off the possibility that the first to third defendants' arguments might succeed (paras 18-22).
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28 Jun 2019
Henry Carr J
 6 WLUK 543 : LTL 8/7/2019