Lloyds TSB Bank Plc v Crowborough Properties Ltd & Ors

1. JUDGE PURLE: I am now asked to revisit the costs order that I made last week, as well as make a costs order in respect of today.

2. As I have withdrawn last week's order before it was entered, I do have power to revisit the costs order. The question is whether I should do so.

3. At the hearing which culminated in the judgment last week, the bank chose to have their case tested and determined upon the pleadings as they then stood. They lost, and they had to apply after trial for amendment to retrieve the situation.

4. They have been fortunate in obtaining my indulgence, because it seemed to me that fairness required that to be done. I do not, however, think it is right to ignore the fact that they still lost the trial as originally fought, although they did win on the essential facts and demonstrated that, in some respects, the claim that was being put forward by the defendants was one which was impossible to accept and must therefore have been put forward with knowledge of its falsity. For example, I expressed scepticism as to whether anyone could have thought the bank was bottling it. For the avoidance of doubt, I do not consider that that was, at the time, the perception of anyone, notwithstanding that I have seen today, as I have seen before, one communication from Mr Olins which tried to sell the strength of the case that was put forward to the bank's witnesses.

5. By the time the deal was done, Mr Kaushal had been in the witness box. It was quite clear from the questions put by Mr Justice Roth that it was most unlikely that the defendants' case would be accepted, though, as Mr Trace knows from experience, appearances can be deceiving when it comes to reading judges and what they are about to decide.

6. It seems to me that, in the light of the reversal that Mr Trace has achieved today, the original costs order cannot stand. Equally, in my judgment, it is not appropriate that the Defendants should be liable for costs, given the fact that Mr Trace had to amend after trial.

7. It seems to me in those circumstances that there are elements of conduct which I can disapprove of on both sides; additionally, it is a crying shame that offers, put forward from time to time by each side, which ought to have been accepted, were not. In my judgment the appropriate order is no order as to costs, and that order includes today's hearing.