Neutral Citation Number: [2011] EWCA Civ 1033
Case No: A3/2010/2669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Chancery Division, Birmingham District Registry
Ms Geraldine Andrews QC, sitting as a Deputy High Court Judge
[2010] EWHC 2453 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/08/2011
Before :

LADY JUSTICE ARDEN
LORD JUSTICE LLOYD
and
LORD JUSTICE TOMLINSON
- - - - - - - - - - - - - - - - - - - - -
Between :

	Ausman Ramzan	Respondent	
	- and -		
	Brookwide Ltd	Appellant 	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Mark Anderson QC & Mr David Mitchell (instructed by Bude Nathan Iwanier) for the Appellant
Mr Leslie Blohm QC & Mr John Stenhouse (instructed by Silks Solicitors) for the Respondent

Hearing date : 16 June 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment on Ancillary Matters

Lord Justice Tomlinson : 
1.	Paragraph 3 of the Order made on handing down the judgment is in one respect the conclusion of the majority, Lloyd LJ and me.  On the question of costs, we preferred the Appellant’s submissions to the effect that the Appellant has been the successful party on the appeal in that it has secured a very substantial reduction in the amount awarded by the judge.  We do not consider that the fact that the Appellant was unsuccessful in its attempt to eliminate the award for loss of profit should lead to a disallowance of any part of its costs.  Arden LJ would have acceded to the Respondent’s argument on this point, considering that an issues-based approach is appropriate, the relative success of the parties on the issues argued on the appeal leading to the conclusion that the Appellant should recover only half of its costs of the appeal.

2.	We are all agreed that it is inappropriate to direct an interim payment on account of costs.  We are further all agreed, indeed it is common ground, that the costs payable to the Appellant should be set off against the unsatisfied part of the judgment and indeed against outstanding costs orders made in favour of the Respondent.  Unfortunately the parties have not put forward any proposal as to how the difficulties arising out of the “set off” of an as yet unascertained sum are to be dealt with.  For this reason we have directed that the relevant costs are to be set off only once agreed or assessed, but we recognise that this leaves over difficulties which may arise with regard to enforcement of the outstanding part of the judgement and the outstanding costs orders.  We would hope that any such difficulties can be dealt with pragmatically by agreement, but we have directed that there should be liberty to apply to a Chancery Master in the event of any difficulty in the parties agreeing how their respective liabilities are now to be reconciled and discharged.