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Aslan v Murphy, 1989 WL 1720299 (1989)

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Miss Gila Aslan v Mr. John Murphy No Substantial Judicial Treatment Court Court of Appeal (Civil Division) Judgment Date 25 July 1989

In the Supreme Court of Judicature Court of Appeal (Civil Division) On Appeal from the West London County Court 1989 WL 1720299 The Master of the Rolls (Lord Donaldson ) Lord Justice Butler-Sloss Lord Justice Stuart-Smith Tuesday 25th July 1989 Representation MISS L. A. PEARCE (instructed by Messrs. Brocklesby & Co.) appeared for the Appellant. MR. ASHE LINCOLN Q.C. (instructed by Messrs. Silverman Sherliker & Co.) appeared for the Respondent. JUDGMENT (Revised) THE MASTER OF THE ROLLS: The position in this appeal is that at the conclusion of the hearing we decided that there should be no order as to costs in this court. In so doing we were departing from the usual rule on the footing that the matter was of general importance and there was perhaps no reason why individual parties should shoulder the burden, particularly as Mr. Murphy was legally aided. In fairness to Miss Pearce, it should be said that the matter was dealt with at some speed and while, theoretically, she had the opportunity to demur, no doubt there were practical difficulties in the way. So, quite rightly if unusually, she wrote to us before we had drawn up the judgment, submitting that the fact that Mr. Murphy was legally aided was irrelevant, which is quite plainly correct. She said that to deprive him of his costs, leaving the Legal Aid Fund to pick up the bill, would effectively pre-judge his counterclaim. That is also correct. He has a counterclaim for harrassment; whether it has any merit in it or not I do not know but, if it has any merit, then the result would be that

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Aslan v Murphy, 1989 WL 1720299 (1989)

he would recover money in the action which would have to be passed over to the Legal Aid Fund pursuant to their charge. Whether Miss Pearce is right on the figures or not I do not know, but she submits that it means that, if he is to pursue his counterclaim, there would be no point in doing so unless his recovery was guaranteed to exceed £500 to £1,000. Miss Pearce also points out that Miss Aslan, the landlord, owns a number of properties so that she is not in the same position as the landlord in the other parallel appeal of being a private landlord, as it were, letting out his own house. Miss Aslan is in the hotel business – at all events the bed and breakfast business – and as a result of Mr. Murphy leaving consequent upon the closing order Miss Aslan has acquired an enlarged property which she can use profitably. For all those reasons Miss Pearce submitted that there really were no grounds whatsoever for departing from the usual order. That submission was made, as I have said, in writing. It was considered by the three of us and we thought there was considerable merit in all those propositions. We were anxious not to increase the costs and, accordingly, we wrote to Mr. Ashe Lincoln Q.C. (who had been appearing for Miss Asian) and invited him to say whether he wished a further hearing. He said he did wish a further hearing. Unfortunately, it proved quite impossible to find any day when Mr. Ashe Lincoln was not otherwise occupied and we were not prepared to accede to his suggestion that the matter go over to October. In consequence, I suggested to Mr. Ashe Lincoln that he should put his submissions into writing, which he has now done. They are five in number. The first is that the appellant, Mr. Murphy, has had legal aid throughout. As I have already said, that is not a ground for depriving him of the costs. He falls to be treated in the same way as if he were unassisted. The second submission is that “there would have been no necessity for the landlord to have brought an action for possession after the closing order if it had not been for the appellant's refusal to give up occupation and wilfully disobey the closing order. The closing order was made in November, but the appellant continued to live there until February despite the landlord's request to him to comply with the closing order which was as binding on him as on the landlord” . That was a point which Mr. Ashe Lincoln argued on the appeal and which we expressly rejected on the grounds that, while the closing order might prevent Mr. Murphy living in the basement, it did not deprive him of possession of it as a tenant for any nonresidential purpose for which he chose to use it, and there was no effective notice to quit. The third submission is that his claim for damages for harrassment is without substantial foundation. It would obviously be quite wrong for me to express any view about that claim. The fourth submission is: “Had there not been an appeal against the judgment under the closing order the landlord would not have appeared in the Appeal Court and in fact did not oppose the appeal about the licence” . That amounts to no more than saying that Miss Aslan won in the court below and, if Mr. Murphy had not appealed, there would have been no need for an appeal, which I am bound to say I find to be entirely correct but it does not seem to advance the argument greatly.

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Aslan v Murphy, 1989 WL 1720299 (1989)

Fifthly, it is said that in any event there should not be any costs allowed to the appellant in respect of this application. These reasons do not appear to me to justify our original order insofar as it departed from the usual order that costs follow the event and, since our order was not drawn up and we are not functus officio, I would vary it to provide that the costs of the appeal should be the appellant's.

Order: Appeal allowed with costs. No order was sought in respect of the costs of the application. THE MASTER OF THE ROLLS: Thank you for coming, Miss Neville. MISS NEVILLE (for Mr. Ashe Lincoln): My Lord, I would address you on one point alone. Having spoken to Mr. Ashe Lincoln yesterday, I believe that the meaning of the last paragraph is really that in any event there should not be any costs allowed to the appellant in respect of this application today. THE MASTER OF THE ROLLS: I see. Yes, I am sorry. We are much obliged to you for pointing that out. We have not actually had an application for costs yet – but it may come. MISS PEARCE: In the circumstances, my Lords, I do not make application for costs. THE MASTER OF THE ROLLS: Thank you very much.

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