Van Dijk v Wilkinson [2001] EWCA Civ 1780 (9 November 2001)

Van Dijk v Wilkinson [2001] EWCA Civ 1780 (9 November 2001)

The judge erred in awarding half the respondent's costs without considering the appellant's substantial success, the respondent's conduct, and the appellant's settlement offer. The agreed sums for the lake and museum floor stand, as no sufficient case for mistake or deduction was made at trial. Costs should be apportioned: respondent to have two-thirds of costs on repudiation issue, appellant to have costs of the balance.

Citation
[2001] EWCA Civ 1780
Parties
Claimant/respondent: Dick Van Dijk; Defendant/appellant: Anthony Wilkinson (T/A HFF Construction)
Jurisdiction
England and Wales
Judgment Date
09 November 2001
Procedural Posture
Civil Appeal / Appeal From Queen's Bench Division (technology and Construction Court) to Court of Appeal
Outcome
Appeal allowed. Cross-appeal dismissed.
Legal Topics
Repudiatory Breach, Final Account Disputes, Damages for Defective and Incomplete Works, Costs Orders, Settlement Agreements
Construction Law Contract Law Civil Procedure Repudiatory Breach Final Account Disputes Damages for Defective and Incomplete Works Costs Orders Settlement Agreements

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Parties

Dick Van Dijk

Claimant/respondent

Anthony Wilkinson (T/A HFF Construction)

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Queen's Bench Division (technology and Construction Court) to Court of Appeal

Legal Issues

  1. 1 Whether the judge erred in awarding costs to the respondent despite the appellant's substantial success on the final account
  2. 2 Whether the agreed sum for lake excavation should be disturbed due to alleged double accounting
  3. 3 Whether deductions should be made from the fixed price for the museum floor for materials supplied by the respondent

Ratio Decidendi

The judge erred in awarding half the respondent's costs without considering the appellant's substantial success, the respondent's conduct, and the appellant's settlement offer. The agreed sums for the lake and museum floor stand, as no sufficient case for mistake or deduction was made at trial. Costs should be apportioned: respondent to have two-thirds of costs on repudiation issue, appellant to have costs of the balance.

Court Disposition

Appeal allowed. Cross-appeal dismissed.

Orders

  • Appellant to have costs of the appeal and cross-appeal, subject to detailed assessment.
  • No order as to costs of interlocutory hearing in the Court of Appeal when costs were reserved.