It may be inferred from the affidavit, quoted above, that the Claimant, through his senior counsel, did not address the Court on costs. That he did not address on material not before the Court is hardly surprising. Failure to address on costs is commonplace and, with two qualifications which will be addressed below, may properly be taken by the Court as an indication that no special or unusual orders are required. The usual order with respect to costs is that they should follow the event, the Court thus being left to judge the precise terms of an appropriate order in the circumstances which eventuate in the judgment.
12 The first and major qualification to this principle arises where an offer of compromise or settlement has been made which properly should not be disclosed to the Court prior to judgment. Although the substance of the offer should not be disclosed, there is usually no difficulty in indicating, at least in this Court, that some form of offer has been made and that, accordingly, questions of costs may need to be reserved so that relevant material can be put to the Court, depending on the outcome and in the event that the parties cannot agree on the appropriate result. Secondly, there are complex cases which involve interconnected issues and possibly multiple parties. Where different parties are ultimately partly successful only, submissions as to costs may need to follow the handing down of judgment. However, even in these cases, the Court should be entitled to act on the basis that resolution of the issue is not intended to be the subject of further submissions, unless a contrary position has been indicated at the hearing. The burden on the Court of applications to address further in relation to costs after judgment is significant. Inadvertence on the part of the legal representatives will generally not be a sufficient basis for permitting further submissions, even in writing, and certainly not a basis for a further hearing, as appears to have been proposed in the present case.
13 The expeditious despatch of the business of the Court depends to a significant extent on the Court being able to rely upon practitioners appearing before it to ensure that its attention is drawn to matters relevant to the determination of the proceedings. If any unexpressed inference is sought to be drawn from the statement that the Court did not "invite" submissions on a particular topic, that inference must be rejected.
14 If submissions had been made to the Court in a timely fashion seeking leave to challenge so much of the decision of the Master as refused to review the decision of the Tribunal with respect to costs, it is unlikely that such an application would have been granted. To the extent that leave was granted, with respect to a specific and confined issue, any order in relation to costs made by the Tribunal would have required an unravelling of the issues covered by the Tribunal's order, in a manner which would not have been practicable or appropriate in this Court. Nor has it been demonstrated that the Tribunal would not be in a position to reconsider its own interlocutory order as to costs in the light of any decision made by this Court. However, because the matter was not raised in a timely fashion, it need not be further addressed. The application seeking orders (5B) and (5D) is rejected.
15 So far as the orders in this Court are concerned, they depend upon reopening the orders made on 29 June 2005. There is no room for the operation of the slip rule. Thus, proposed order (5A)(ii) seeks to vary the order made on 29 June only to add Ms Wiley as bearing joint responsibility for the costs ordered to be paid by Mr Baine. The issue on which the Claimant was successful was limited to the legal basis on which his attempt to join Mr Baine, not as house-owner, but as solicitor, and, vicariously, the other partners in the firm of which he was a member, was rejected. The affidavit filed on behalf of the Claimant noted that Mr Baine and Ms Wiley had the same lawyers at all relevant stages of the proceedings. If that is the basis upon which costs are sought against Ms Wiley, it is without substance or merit. The application should not have been made.
16 Carroll & O'Dea were represented by counsel before this Court and the position of the firm was known to the Court and was taken into account. No basis has been demonstrated for reopening the decision so as to make a different order to that made on 29 June with respect to the law firm.
17 The purpose for seeking these orders might have been obscure, but in written submissions in support of the present application, the solicitor for the Claimant asserted, baldly, that the intention was not merely that he should get 50% of his costs of the hearing in this Court, but that he should also recover the other 50% from Carroll & O'Dea. In the final paragraph of his submission he stated, in effect, that he was entitled to bring these proceedings as of right and that he has been entirely successful. Neither of those statements is correct and the application with respect to Carroll & O'Dea in relation to the costs order already made in this Court demonstrates no basis for reopening a considered judgment.
18 There remains the application with respect to the order as to costs before the Master. In respect of Mr Baine, the affidavit in support of the application stated (at par 25):
"Third, the appellant understands that the order of the Court of Appeal that Anthony Baine pay the appellant one-half of his costs of the appeal before Master Malpass is in substitution of the order of Master Malpass that the Appellant pay the costs of Anthony Baine in the appeal before Master Malpass."