Feasey v Sun Life Assurance Company of Canada & Ors

LORD JUSTICE WARD:

1. We make orders in terms of the draft we have been given. The appeal is to be dismissed. The Syndicate will pay Steamship's costs of the appeal, subject to detailed assessment. If you need an order that you are entitled to attend, you can have it. Sun Life must, we fear, then pay the Syndicate the costs the Syndicate have to bear in the appeal affecting Steamship.

2. As to the interim payment, we really do think that some attempt ought to have been made to put these figures both before us and before the other side. But we are not in such an ivory tower that we do not realise that this is expensive litigation. We think the best we can do, plucking figures from the air, is to award an interim payment of £100,000, and that will be passed down the line.

3. The question of the costs between the Syndicate and Sun Life is much more difficult. It is easy to say that the Syndicate will pay the costs of the cross-appeal which they have lost. There is no controversy about that. Sun Life must pay the costs of the abandoned misrepresentation questions up to the date of abandonment on 17th January or whensoever.

4. But as for the costs of the Syndicate appearing, the proposal made in the correspondence put before us was eminently reasonable. There is no request to treat this as a Part 36 type letter. We are not dealing with indemnity costs, though possibly such an argument might have been mounted. But we are impressed by the fact that the Syndicate did nothing in the 1774 Act appeal at all, neither by way of putting in written argument nor proffering any argument on the oral hearing. They truly sat in the middle. They did have an interest to protect inasmuch as they were parties. After carefully balancing the relative justices of the case, we think the correct and fair order is to say that the Syndicate shall be allowed the costs of a noting brief for counsel to attend and to have their costs limited to that extent. That measures, in our view, our disapproval of the incurring of unnecessary costs. We regard the attendance of the Syndicate with senior counsel and senior partners as quite unnecessary and unjustified.

5. Leave to appeal is equally difficult. Each of the four points made by Mr Kendrick is good. If Steamship had lost Mr Boswood would have been vociferous in seeking permission. I am still, unfortunately, getting feedback from the Master of the Rolls that their Lordships do like to “dine à la carte”, as it has been suggested to us. They do wish to be kept in control of their list. I regret, perhaps, not having informally approached Lord Bingham, but I have not and I do not think I should do so now. With some hesitation, we conclude, therefore (there being no extreme emergency about this case, and it can hardly be being said that the parties cannot afford the petition), that leave must be sought from their Lordships, with the indication, for what it is worth, that we each think this is an important and difficult case which might well interest their Lordships.