Balven v Thurston

1. [1]

   In the second set of proceedings related to this matter to come before this Court, the plaintiff appeals against a decision of the Local Court awarding damages against him for the tort of trespass, and ordering him to pay the costs of the proceedings.

2. [2]

   The history of this litigation is long and unfortunate, and it is regrettable that it is again before this Court. Because of the multiplicity of proceedings, and to avoid confusion, the parties will be referred to by their names rather than by reference to their respective role in these proceedings.

3. [3]

   The acts giving rise to the proceedings occurred in 2010 in the context of the breakdown of a relationship. The proceedings were commenced later in the same year when the present defendant, Ms Thurston, sued the present plaintiff, Mr Balven, for damages arising out of the torts of assault and trespass to property.

4. [4]

   The matter was initially heard in the Local Court over three days in 2011. It was subject to two decisions by the learned magistrate some months apart. Walsh LCM found Mr Balven liable for two assaults and four incidents of trespass to property. He awarded damages to the total amount of $25,000 and made costs orders against Mr Balven.

5. [5]

   Mr Balven appealed to the Supreme Court in 2012 disputing the factual findings of the Local Court, as well as the application of legal principles to those facts, and challenging the orders for damages and costs. The appeal was partially successful as Latham J found that, while the factual findings of the learned magistrate were open to him, the application of the law of torts and assault to the facts at hand had miscarried. Having found that the allegations of assault were not made out, in March 2013 Latham J remitted the matter to the Local Court for assessment of damages in accordance with her reasons.

6. [6]

   In the subsequent proceedings in the Local Court there were again lengthy submissions on the issues of damages and costs, both oral and written, spanning a number of months between August 2013 and March 2014, and resulting in two judgments, both of which are challenged by the present summons, filed on 14 May 2014.

7. [7]

   On 25 February 2014, the learned magistrate reduced the amount of damages to $17,000 plus interest, comprising of $10,000 of general damages, and $7,000 of aggravated damages. Having allowed further time for further submissions on costs, in his decision of 31 March 2014, his Honour confirmed his original orders as to costs imposed on 4 May 2012.

8. [8]

   The proceedings came before me on 6 February 2015. I granted leave to file the summons out of time, but otherwise refused leave to appeal and dismissed the appeal. These are my reasons for so doing.

Factual background

1. [9]

   The factual findings are conveniently summarised in the judgment of Latham J in Balven v Thurston [2013] NSWSC 210. As the damages awarded by Walsh LCM were to be assessed in accordance with her Honour’s reasons, as set out in that decision, and the factual matrix described therein also underpins the current appeal, it is convenient to extract her outline of the facts from that judgment.

2. [10]

   Latham J set out the evidence as follows:

3. [11]

   As noted, Latham J found the facts as described above were established by the evidence. However, she found that the text messages sent on 11 March 2010 and 6 April 2010, while communicated in the terms alleged, did not constitute the tort of assault as the imminence of physical harm was not established. Whilst the learned magistrate found Ms Thurston was placed in fear and apprehended reasonably immediate contact from Mr Balven, that was not sufficient to establish the tort of assault as it is the threat itself that must connote the immediate violence, rather than the subjective interpretation of the recipient.

4. [12]

   The remaining grounds of appeal were either dismissed or were not required to be determined in light of Latham J’s findings regarding the assaults.

5. [13]

   The learned magistrate’s orders as to damages for the assaults were necessarily set aside. The award for damages relevant to trespass remained. However, as the learned magistrate made a global order, without apportioning the damages between assaults and trespass, the matter was remitted back to the Local Court so that the damages could be assessed in accordance with the findings of this Court. Latham J made some obiter comments as to the damages.

Proceedings in Local Court on remitter

1. [14]

   The matter was again before Walsh LCM on 7 November 2014. Written submissions were filed by both parties. Ms Thurston submitted that damages should not be reduced at all, whilst Mr Balven suggested a sum of $5,000 for general and $5,000 for aggravated damages was appropriate.

2. [15]

   In a written judgment of 25 February 2014, the learned magistrate correctly noted that, apart from the successful ground of appeal, Latham J did not otherwise criticise his fact finding or his assessment of damages, both of which thus remained effective.

3. [16]

   He rejected Mr Balven’s contention that the assaults were the most significant aspect of the conduct giving rise to damages as inconsistent with his findings at first instance where he was satisfied that Ms Thurston was put in fear and suffered from a mild adjustment disorder with mixed anxiety and depressed mood, which was causally connected to the assaults as well as to the trespasses to land. He found that the disorder was not permanent, nor of a most serious nature, and did not extend past 2010, but was attributable to both the trespasses and the conduct earlier found to constitute an assault.

4. [17]

   Noting that the award of damages is not a simple mathematical exercise, his Honour reduced the general damages to $10,000 and aggravated damages to $7,000, with interest payable to half of each amount from 1 May 2014.

5. [18]

   The orders as to costs will be dealt with later in this judgment.

Appeal

1. [19]

   On 14 May 2014 Mr Balven filed the Summons seeking relief in the following terms:

2. [20]

   Mr. Balven advanced the following grounds of appeal:

3. [21]

   A preliminary issue arose as to the timing of the second decision of Walsh LCM, relating to costs orders. As noted, the decision was made in chambers, on written submissions, and is dated 31 March 2014. As no parties were present, the judgment was delivered to the parties by post. However, the parties did not receive the decision until some weeks later, on 22 April 2014.

4. [22]

   If the material date is taken to be the date the decision is handed down, that is 31 March 2014, the appeal is lodged outside of the prescribed 28 day period (r.50.3 Uniform Civil Procedure Rules 2005 (NSW)). In light of the fact that both parties received the judgment with some delay, which seems likely a result of the judgment being dispatched late from the Local Court Registry, I formed a view that granting leave to file summons out of time is in the interests of justice.

5. [23]

   While the grounds of appeal are eight in number, and are variously expressed, they raise effectively two matters – appeal against the award of damages (grounds 1 to 5) and an appeal against the order for costs (grounds 6 to 8). Mr Balven argues that the appeal as to damages raised issues of law alone, thereby invoking the jurisdiction of this Court pursuant to s.39 of the Local Court Act 2007 (NSW). However, he seeks leave to appeal “to cover [himself]” lest he be wrong on that, arguing that those grounds raise at least mixed questions of law and fact.

6. [24]

   While I am inclined to the view that assessment of damages in light of certain facts of the matter is a question of mixed law and fact, rather than a question of law, Ms Thurston’s counsel has not argued such is the case. In any event, in the circumstances of the present appeal and my conclusions that the grounds are not made out, it is not strictly necessary to determine whether grounds 1 to 5 require leave or not.

7. [25]

   Grounds 6 to 8 clearly do require leave however: s.40(2)(c) Local Court Act 2007.

8. [26]

   Grounds 1 and 5 are expressed in similar, somewhat overlapping terms, and, as developed in oral argument, seem to intrinsically intersect with the second ground of appeal.

9. [27]

   The gist of the argument is that the amounts awarded on remitter are too high in light of Latham J’s findings that the assaults have not been made out. The error is said to arise from the following paragraph of her Honour’s judgment:

10. [28]

    Mr Balven argued that the major component of the damages must have been awarded for the assaults, as they were the most serious allegations, and were the ‘cause’ of the psychological injury. That submission was expressly rejected on remitter and is plainly based on an incorrect interpretation of Walsh LCM’s findings at first instance – that the fear and the adjustment disorder were the result of both trespass and assaults.

11. [29]

    I raised this with counsel in oral submissions, querying the basis upon which it was contended that the fear experienced by Ms Thurston is irrelevant to trespass, with the issue of trespass considered in isolation to the threatening text messages. The threatening text messages provide the context in which the trespass occurred, especially where the messages are temporally and contextually related to the trespass (for example, the message from Mr Balven to Ms. Thurston threatening to burn her house down, a message sent on the same day that he unlawfully entered her house).

12. [30]

    The text messages are inextricably linked to the acts of trespass and put them into a proper context. They have the capacity to, and do, make the acts of trespass more serious, in the sense that they make them more frightening.

13. [31]

    Counsel for Mr Balven conceded that it was open to his Honour to reach that conclusion, noting that he did not dispute the factual findings made by his Honour, but submitted that to award damages for psychological injury was to allow assaults to creep back into consideration, despite being overturned on appeal.

14. [32]

    I do not accept that such is the case here.

15. [33]

    The learned magistrate referred to and clearly turned his mind to the above paragraph of Latham J’s judgment. He rejected the submission that the assaults were the most serious aspect of Mr Balven’s conduct. He found that Ms Thurston’s mental state was caused by both the receipt of threatening messages, and the trespasses by Mr. Balven upon her property. On a proper reading of the learned magistrate’s reasons, it is clear that he assessed the acts constituting trespass in the context of the whole of Mr Balven’s conduct, as established by the evidence. The pattern of his conduct indicated stalking, intimidation, and oppression of Ms Thurston. The acts of trespass were committed as a part of, and in furtherance of that pattern.

16. [34]

    Damages to be awarded for trespass had to be assessed in that context. To do it any other way would have been to embark on an entirely artificial exercise.

17. [35]

    Mr Balven’s submissions on remitter were somewhat contradictory. He conceded that some award of damages was appropriate, whilst submitting that there was no damage occasioned by the acts of trespass, and thus no damages should be awarded.

18. [36]

    It is clear that damages for trespass may be awarded even where no damage is occasioned:

19. [37]

    While neither party has referred this Court, or the court below, to any relevant authority on point, there is precedent for an award of damages for psychiatric harm or mental trauma resulting from trespass to land (although there seems to be some ambiguity as to the relevant test to be applied). In TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82, Spigelman JA, having referred to the differing approaches, was of the view that it may be most appropriate to apply the test of whether the resulting harm, including the psychological injury, is intended, or is the natural and probable consequence of the tortious act (at [100]).

20. [38]

    While the court in Anning found that damages for mental trauma were not recoverable in the particular circumstances of that case, Spigelman JA noted at [104] that “what is the natural and probable consequence arising from a trespass to land must depend on all the circumstances of the case,” adding:

21. [39]

    The circumstances of the present case are distinguishable from Anning and in my view are informed by the second example given by Spigelman JA. In the circumstances where the incidents of trespass were committed in the context of intimidation and stalking, and in furtherance of such intimidation, the mental harm as experienced by Ms Thurston was clearly capable of being viewed as a probable, and/or intended, consequence of trespass. However, even if there was any doubt as to whether the adjustment disorder was actionable, the fear experienced by Ms Thurston as a result of persistent, unauthorised intrusions into her home as referred to by the learned magistrate, clearly was.

22. [40]

    With respect to the scope of the available damages in tort, in State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 Basten JA said

23. [41]

    The principle in relation to the availability of aggravated damages was outlined in Lamb v Cotogno [1987] HCA 47, (1987) 164 CLR 1, at 8 as

24. [42]

    Thus, not only are both general and aggravated damages available for tortious conduct, but the surrounding circumstances of the said conduct are clearly relevant and essential to a proper assessment of the award:

25. [43]

    And:

26. [44]

    A fair reading of the learned magistrate’s reasons indicates that his Honour turned his mind to the relevant circumstances and assessed the seriousness of the trespass by reference to the context of the conduct. His Honour found that aggravated damages should be awarded because “in relation to each tort [Mr Balven] consciously and contumeliously disregarded the rights of the plaintiff and put his wishes and desires above hers.”

27. [45]

    Such contumelious conduct made the already serious infringements of Ms Thurston’s civil rights even more significant, necessarily increasing the degree of hurt experienced by her: Johnstone v Stewart [1968] SASR 142 at 144-145. In those circumstances, it was appropriate that she be compensated by way of both general and aggravated damages.

28. [46]

    The complaint as to the quantum of the damages was based largely on Latham J’s comment that she expected the damages to be of “modest” nature. No material was tendered by Mr Balven to resolve what a ‘modest’ amount may be in the present circumstances. No comparable cases were provided to the court to shed light on what Mr Balven would say is an appropriately modest amount; or to indicate that the amounts awarded by his Honour were excessive.

29. [47]

    There is nothing to indicate that it was not open to the learned magistrate to award damages in the amounts he did. No error is demonstrated.

30. [48]

    Grounds 1, 2 and 5 are dismissed.

31. [49]

    Mr Balven argues that the learned magistrate should have applied the provisions of the Civil Liability Act 2002 (NSW) that limit the award of damages for non-economic loss. Section 16 of the Act provides:

32. [50]

    The section further sets out a table of ratios to be awarded depending on the extent of impairment.

33. [51]

    Mr Balven argues that the magistrate did not embark upon the exercise of assessing the proportion of the loss suffered in comparison to the most severe case, and apportioning the damages accordingly. He further argues that in light of the magistrate’s finding that the condition was transient, his Honour should have found that the impairment was below 15% and thus should have not awarded damages at all.

34. [52]

    Notably, no submission to this effect was made in the Local Court on remitter. Mr Balven did not submit that no damages should be awarded but rather suggested what he said were appropriate sums of $5,000 for each of general and aggravated damages. Implicit in such submission is a concession that either the loss was above the threshold, or that the provisions did not apply.

35. [53]

    Furthermore, Mr Balven’s submissions below did not undertake the very analysis which he complains the magistrate failed to embark upon. There was no indication as to how Mr Balven arrived at the amounts of $5,000 that he suggested as appropriate awards.

36. [54]

    The provisions of s.16 come into play only if liability falls within the realms of the Act. Section 3B excludes certain civil liabilities from the operation of the Act. Relevant to present circumstances, it provides:

37. [55]

    Subsection (1)(a) goes on to list a number of exceptions, none of which are relevant for present circumstances.

38. [56]

    Evidently, the test in s.3B, as relevant for present purposes, is twofold – (1) the act must be intentional and (2) it must be committed with intent to cause injury or death.

39. [57]

    Mr Balven argues that s.3B does not apply to the present facts because, as the assaults were not made out, the second step is not made out; that is, there was no act committed with intent to cause injury. In support of his contention he relies on paragraphs [41] to [46] of Latham J’s judgment where her Honour made obiter comments that s.3B did apply to the assaults were they to be made out (that is, the Act was excluded from operation), but because they were not, she did not have to determine the issue. Mr Balven argues that by implication, her Honour was of the view that s.3B would have no part to play on remitter.

40. [58]

    It is not clear from the material before this court whether the argument before Latham J was directed to the application of the Act to both the trespasses and assaults, or to the assaults alone. The way her Honour dealt with the matter would suggest the latter as her comments are directed to the application of s.3B to the alleged assaults. I do not understand her Honour to suggest that s.3B would necessarily not apply to trespasses; hence the operation of the Act would not be excluded; and damages would have to be limited pursuant to s.16.

41. [59]

    In light of the fact that her Honour made only passing comments on this issue, together with the uncertainty as to the scope of the argument before her, it is not prudent to attempt to interpret her reasons in this regard, or to attribute meaning to them that she may not have intended on a matter that was not fully considered.

42. [60]

    I am satisfied that s.3B does apply to the facts at hand and excludes the application of the Act with respect to damages for trespass.

43. [61]

    All of the acts constituting trespass were done willingly and consciously, and were thus intentional. Therefore, the first condition of s.3B is satisfied.

44. [62]

    Were the acts done with intention to cause injury?

45. [63]

    Injury is not defined for the purposes of s.3B, but is defined in other parts of the Act including s.11:

46. [64]

    The Court of Appeal has warned of the dangers of attributing definitions from a specific part of the Act to other parts, as parts of some statutes are purpose-specific, and definitions appearing in each are tailored to the relevant part and its purpose.

47. [65]

    In New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 it was held that the word injury in s.3B should not be limited to “personal injury” but should rather be given its ordinary meaning, which would include harm caused by an apprehension of physical violence (per Spigelman CJ at [11] and Basten JA at [218]). In the same case Ipp JA noted:

48. [66]

    Thus, if the acts were done with intention to cause anxiety, or distress, or fear of physical violence, they were done with intention to cause injury.

49. [67]

    As I noted above, in my view, the acts of trespass have to be assessed in the context of all of the evidence. The text messages, while not meeting the legal definition of assault, were sent with intention of causing injury. So much is also clear from Latham J’s judgment.

50. [68]

    The messages, especially where sent in reference to trespass, such as the message threatening to burn Ms. Thurston’s house down, inform the intention behind the acts of trespass. They are interrelated acts, committed in the same context. They indicate that at least to some extent, the purpose behind the trespass to land – especially the incident of driving into the garage – was to intimidate Ms Thurston. As such, they were acts intending to cause her injury.

51. [69]

    The learned magistrate would seem to have accepted that much by finding that Ms Thurston suffered from fear and had suffered an adjustment disorder to be attributed to both the text messages and the trespass. To that effect, he accepted the opinion of Dr Nicolas that her condition continued while she was threatened, trapped, shadowed, stalked and intimidated, which he found did not continue past 1.5.10. The incidents of trespass contributed to that intimidation.

52. [70]

    Thus, as Mr Balven’s acts were both intentional and intended to cause injury in the meaning relevant to s.3B, the section must apply, and the Act is excluded.

53. [71]

    Grounds 3 and 4 are not made out.

54. [72]

    Grounds 6, 7 and 8 relate to the learned magistrate’s orders as to costs. Ground 6 argues the learned magistrate erred in not applying clause 36.2 of the Local Court Practice Note 1. Grounds 7 and 8 relate to His Honour’s orders as to indemnity costs.

55. [73]

    On 13 April 2012, having awarded damages, the learned magistrate proceeded to order Mr Balven to pay Ms Thurston’s costs as agreed or assessed on the ordinary basis. Ms Thurston’s representatives raised the issue of indemnity costs in light of a prior offer of compromise. Some discussion ensued with the learned magistrate allowing further time for the parties to file material and submissions on the issue. It was agreed his Honour would make orders in chambers, in absence of any requirement for oral submission, and would advise the parties accordingly.

56. [74]

    Ms Thurston filed a copy of her offer of compromise dated 7 June 2011 and served on Mr Balven pursuant to rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW). The offer was in the terms that Mr Balven pay Ms Thurston damages in the sum of $25,000 and costs as agreed or assessed. The offer, which was not accepted, was to the same amount as ultimately awarded by the learned magistrate at first instance.

57. [75]

    On 4 May 2012, his Honour made the following orders:

58. [76]

    When the matter was remitted to the learned magistrate in 2013, and he awarded damages in the total amount of $17,000, his Honour again allowed the parties further time to make submissions as to costs, if variation to his previous orders was sought. It was.

59. [77]

    Written submissions were filed, as were copies of two earlier offers made by Mr Balven – one made on 29 July 2010 in essence suggesting proceedings between the parties be dismissed and each party pay their own costs. The second offer was made on 11 March 2011 in accordance with rule 20.26, offering to pay Ms Thurston $12,000 and costs as agreed or assessed. In the written submissions of 21 March 2014, Mr Balven also refers to an earlier offer of $15,000, although that document was not formally before the court. All of these offers predate Ms Thurston’s offer of 7 June 2011.

60. [78]

    Mr Balven argued in the Local Court, as he does in this Court, that the costs should have been ordered in accordance with cl 36.1 of the Local Court Practice Note 1 (Civil Proceedings). In addition, he argued that the magistrate, having reduced the damages to $17,000, had no basis for indemnity costs as the ultimate award was lower than Ms Thurston’s offer of 7 June 2011.

61. [79]

    Having determined the issue on the written material, in a judgment of 31 March 2014 his Honour ruled that his previous orders of 4 May 2012 remain. His Honour referred to the Practice Note but was of the view that complexities of this matter warranted departure from it. With respect to indemnity costs, he noted that both of Mr Balven’s offers of compromise were substantially below the ultimate award. He was not persuaded that he should depart from the orders he made on 4 May 2012 and hence did not.

62. [80]

    I see no error in that approach.

63. [81]

    All three grounds require leave.

64. [82]

    In Be Financial Pty Ltd v Das [2012] NSWCA 164 Basten JA outlined a number of matters of significance when considering a question of leave. In the circumstances of the present matter, it is useful to set them out in full:

65. [83]

    The above passages resonate strongly in the case at hand. The costs involved in prosecuting this matter, and especially the two appeals, has far outweighed the amount ultimately awarded. As noted by Latham J in the 2013 appeal, the expenditure to the judicial system and the use of judicial resources is entirely disproportionate to the award in question. This second appeal to the Supreme Court adds to the futility of that expenditure, and highlights the importance of Basten JA’s comments above.

66. [84]

    I am not of a view that ground 6, 7 and 8 raise any questions of general public importance or principle. Nor do they point to the existence of any injustice to the parties. Militating against the grant of leave are the further costs to be incurred, the unnecessary expenditure to the justice system, and the fact that after five years of proceedings before the courts, there must be some finality to this matter.

67. [85]

    I would refuse leave to appeal.

68. [86]

    However, as the merits of the prospective grounds are one of the matters to be considered when determining the issue of leave, I will make some brief observations as to why the grounds would not be successful in any event.

69. [87]

    Mr Balven asserts that his Honour failed to give proper consideration to clause 36.2 of the Local Court Practice Note Civil 1. Clause 36.2 appears in Part G of the practice note, titled “Maximum Costs in the General Division”, which commences as follows:

70. [88]

    Part G goes on to provide that a party seeking to vary the maximum order may file a notice of motion to that effect, and proscribes requirements for supporting evidence.

71. [89]

    Mr Balven made the same submissions on remitter as he did before this court, namely that because the ultimate award of damages was between $10,000 and $20,000 the costs should have been limited in accordance with clause 36.2. Ms Thurston argued that the clause applied to liquidated claims, rather than unliquidated claims, submitting that the word “claim” as it appears in the clause refers to an amount that is sought in the originating process, rather than the amount ultimately awarded. Mr Balven argued to the contrary. Neither this nor the Local Court was referred to any authority on the point, despite this Court granting the parties liberty to file any such authorities within 5 days of the hearing.

72. [90]

    This issue does not need to be resolved for the purposes of this appeal, as I am of the view that, even if the present proceedings came within the scope of the clause, whether to apply it or not was entirely a matter for his Honour. Nothing in Part G, or indeed the preceding parts, imposes any prescriptive obligation on the magistrate to apply the clause. On the contrary, clause 36.2 specifically states “Unless the court otherwise orders …”. The question of costs remains entirely within his Honour’s discretion.

73. [91]

    To say that his Honour failed to have adequate regard to the practice note in circumstances where he directly addressed the submissions, the practice note, the authority he was referred to, and the overriding purpose of the Civil Procedure Act 2005 (NSW), is entirely misconceived. Having considered the relevant issues, and having found that the matter was not a simple matter, his Honour was entitled to depart from the provisions of clause 36.2. That is so despite the fact no party filed a notice of motion seeking a different order. There is nothing in the practice note to restrict the magistrate from varying the maximum order of his own volition, in absence of any notice of motion. That too is a matter entirely within his Honour’s discretion.

74. [92]

    As grounds 7 and 8 both deal with the award of indemnity costs, it is convenient to deal with them together.

75. [93]

    At first instance, the learned magistrate ordered Mr Balven to pay Ms Thurston’s costs on indemnity basis as of, and including, 7 June 2011, that being the date of her offer of compromise of $20,000 which was bettered at first instance. There was nothing unusual about that order, and, in fact, it was precisely in terms prescribed by rule 42.14 of Uniform Civil Procedure Rules 2005.

76. [94]

    On remitter, his Honour awarded $17,000, an amount below that offered by Ms Thurston in the letter of 7 June 2011. Thus, Mr Balven argued he should not pay indemnity costs, and his Honour’s previous order to that effect should be set aside.

77. [95]

    However, his Honour was referred to two previous offers made by Mr Balven – one for the amount of $12,000 and one for an amount of $15,000. Neither was accepted by Ms Thurston and both were ultimately bettered.

78. [96]

    Indemnity costs are often awarded in light of offers of compromise that were ultimately bettered, as an important case management tool: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353. For the same reason, Division 3 of Part 42 of the Uniform Civil Procedure Rules 2005 provides express rules for awards of indemnity costs; although the present situation – where a defendant makes an offer which is not accepted by the plaintiff, and is ultimately bettered by the plaintiff – is not covered by the rules.

79. [97]

    That does not mean however that it was not open to the learned magistrate to order indemnity costs. On the contrary, the power to award indemnity costs is absolute, as provided by s.98(1) of the Civil Procedure Act 2005, to be exercised as appropriate in the circumstances, although with caution.

80. [98]

    Whilst his Honour’s expression, “the reasons given on 4th May 2012 still factually apply” may not be of the most felicitous in the present circumstances, it cannot be said that his Honour overlooked the essential facts. When considering the question of the award on 24 February 2014, having just reduced the amount of damages, his Honour indicated to the parties that the orders regarding costs would remain as it was unless he were convinced otherwise. In his judgment of 31 January 2014, his Honour referred to and considered the offers of compromise, the complexity of the proceedings and the reduced award on remitter, before determining that nothing raised had convinced him that his original orders should be varied.

81. [99]

    Nothing has been raised by Mr Balven to indicate that his Honour’s discretion miscarried.

82. [100]

    Leave to appeal on grounds 6, 7 and 8 is refused.

Orders

1. [101]

   The orders made are as follows:

   1. (1)

      Leave to file the Summons out of time is granted.

   2. (2)

      Leave to appeal, in so far as it is required, is refused.

   3. (3)

      Summons is dismissed.

   4. (4)

      Costs of these proceedings are awarded in favour of Ms Thurston.