Cobstone Investments Ltd v Maxim

Rent Act 1977 — Statutory tenant’s appeal against county court order for possession — Case 2 in Schedule 15 to 1977 Act — ‘Conduct which is a nuisance or annoyance to adjoining occupiers’ — Meaning of ‘adjoining’ — Point not previously decided by Court of Appeal — View expressed in Megarry (‘the present Vice-Chancellor’s classic work’) approved — In the present case there were allegations of verbal abuse and obscene language against the appellant — Appellant occupied a ground-floor flat and the complaints were made, in one case by the occupier of another ground-floor flat between which and the appellant’s flat was a party wall, and in three cases by occupiers of flats on second, third and top floors in the same house as the appellant’s flat — Appellant contended that these three occupiers were not ‘adjoining’ as this term had the restrictive meaning of ‘contiguous’ in the sense of physically joining or coterminous — It was conceded that the occupier of the other ground-floor flat was ‘adjoining’, but it was submitted that it would not be reasonable to make an order for possession on his complaint alone — Held, affirming the decision of the assistant recorder in the county court, that the appellant’s submissions failed — The court approved a passage on p 271 of the 10th edition of Megarry that the restrictive interpretation of ‘adjoining’ as contiguous was incorrect — One meaning of the word was ‘neighbouring’ and all that the context seemed to require was that the premises of adjoining occupiers should be near enough to be affected by the tenant’s conduct on the demised premises — The court rejected two other grounds of appeal, namely, an alleged failure by the judge to consider the exercise of his discretion under section 100(2) of the 1977 Act to suspend an order for possession so long as the tenant did not engage in conduct which was a cause of annoyance, and an alleged misdirection in considering the reasonableness of ordering possession — Appeal dismissed This was an appeal by the tenant, Pearl Maxim, from an order of Mr Assistant Recorder Seddon Cripps, sitting in West London County Court, granting the plaintiffs, Cobstone Investments Ltd, the present respondents, possession of Flat 2, 12 Queens Gate, London SW7. Michael Pearson (instructed by Oliver O Fisher & Co) appeared on behalf of the appellant; Mark West (instructed by Tucker Turner & Co) represented the respondents. Giving judgment, DUNN LJ said: This is an appeal from the order of Mr Seddon Cripps, sitting as an assistant recorder in the West London County Court on February 1 this year, when he ordered that the plaintiffs should recover against the defendant possession of Flat 2, 12 Queens Gate, London SW7. He postponed the operation of the order for 10 weeks, which expires today. The plaintiffs, Cobstone Investments Ltd, are the owners of the whole of the premises (no 12) and they also own the next door premises (no 11). They bought those premises from the Crofton Hotel Ltd, which occupies no 13, in 1980. The defendant was a sitting tenant of Flat 2. She had occupied that flat certainly from 1976 and before that she had occupied a flat in no 11. The defendant, under the terms of her lease with the Crofton Hotel, was entitled to central heating in the flat and that central heating ceased to be available at the end of 1981. The judge found that down to late 1981 when the plaintiffs had completed the acquisition of no 11 there was no difficulty between them and the defendant. The defendant’s tenancy had been duly determined by notice to quit, so that she was holding as a statutory tenant. The plaintiffs-landlords sought possession of the flat under Cases 1 and 2 of Schedule 15 to the Rent Act 1977. So far as Case 1 was concerned, although there had been substantial arrears of rent at the date of issue of the proceedings, the arrears had been paid off and by the end of the hearing the defendant had paid all the arrears of rent which were due. But the recorder made his order under Case 2 on the ground that the defendant had been guilty of conduct which was a nuisance or annoyance to adjoining occupiers. The allegations of annoyance extended over a period from August 1982 to May 1983. The conduct complained of was essentially verbal abuse and the use of obscene language to effectively the landlord (although the company, in law, owned the premises; the company was itself owned by Dr Al Shalabi) and there were also allegations of a similar nature in respect of three other tenants of no 12, Mr Hosford, Mr Burgess and a Miss Barton. The case lasted 10 working days in the county court. The recorder reserved his judgment. He gave a full judgment in which he reviewed the whole of the voluminous evidence which had been before him and he found 11 incidents proved, five relating to Dr Al Shalabi, four to the other tenants of no 12, one related to a maintenance man whose name was John, and the final incident involved the attachment to the door of the defendant’s flat of an abusive notice, which it was accepted had been written by the defendant but actually attached to the door by somebody else. The occupancy of the various flats at nos 11 and 12 is of some importance. Each house consists of a basement, a ground floor and three upper storeys. In no 11 Dr Al Shalabi uses the ground floor as an office. Although he does not live there, it was accepted that he was in occupation of that flat. He was the only person from no 11 who made complaint. As far as no 12 was concerned, there were no complaints from the occupier of the basement. The defendant herself occupied Flat no 2 on the ground floor. The first-floor flat was occupied by some employees from the Iraqi Embassy. There was no complaint from them. The second floor was occupied by Mr Burgess and Miss Barton, who were complaining: and the third and top floor by Mr Hosford, who was also complaining. Mr Pearson, for the appellant-defendant in this court, realistically made no attack on the judge’s findings of fact or on his finding that the defendant had been guilty of conduct which constituted an annoyance. His primary ground of appeal was that the three tenants of no 12 who did complain were not adjoining occupiers within the meaning of the section. He submitted that the word ‘adjoining’ in Case 2 of Schedule 15 means that the premises must be contiguous in the sense of physically joining, or being coterminous with the tenant of whose conduct complaint is being made. Mr Pearson submitted that, in the context, the word ‘adjoining’ does not mean ‘neighbouring’. In support of that basic submission Mr Pearson referred us first of all to the 1915 Rent Act (which was the first of the Rent Acts) and the relevant provision is in section 1(3) where a ground for ordering possession is if the tenant has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers. He pointed out that the word ‘neighbouring’ had been deleted from the relevant statutory provision in the 1920 Act and does not appear in any subsequent Act or in the 1977 Act, and so (he submits) that is an indication that Parliament intended to limit the category of persons who are entitled to complain of nuisance and on whose complaints the court can order possession. 126 As far as the researches of counsel have been able to ascertain, there are only two decisions of the courts which are directly in point on the construction of the word ‘adjoining’ in the section, and they are conflicting decisions of two very experienced county court judges. The first is in the case of Marquess of Northampton Estate (Trustees of) v Bond [1950] EGD 122, which is a decision of Judge Blagden when he adopted the restrictive meaning of the word which is contended for by Mr Pearson and held that the tenants of a second-floor flat were not adjoining occupiers to the tenant of the ground-floor flat, whose conduct was relied upon as constituting a nuisance, and accordingly he dismissed the claim for possession founded on complaints by the tenants. The case the other way is Metropolitan Railway Land Corporation v Burfitt [1960] CLY 2749, a decision of Judge Harold Brown, in which the landlord claimed possession of two rooms on the ground ‘that the defendant . . . was a nuisance and annoyance to adjoining occupiers. The defendant occupied rooms on the first floor. Evidence of annoyance to themselves was given by the occupiers of rooms above those of the defendant and on the second floor, and also by the occupier of rooms on the first floor, next to those of the defendant’. The report is not clear. It would appear from the short report which I have just read that some of the premises may have been physically touching, but I do not think that can have been the position because the judge made an order for possession. He held (1) that the meaning of ‘adjoining’ . . . had not been finally adjudicated and that a rather narrow construction had been placed on it; (2) that the statement in Megarry’s Rent Acts, 8th ed, p 251, was the correct view, namely that the meaning ‘contiguous’ was too strict; and (3) that where there was a building in small flats where bathrooms and lavatories had to be shared it was of the utmost importance that the tenants should live in harmony and that the landlord ought to have a right to claim possession even though the persons annoyed occupied rooms not physically adjoining those of the defendant. Mr Pearson then went on to cite a number of 19th-century and early 20th-century decisions based on restrictive covenants, where the covenants had sought to restrain occupiers of adjoining premises from certain activities. In those cases the word had been strictly construed as meaning absolutely contiguous without anything in between, or in physical contact with one another, or touching one another in some part. The word had only been given a wider meaning where that could be deduced from the context of the covenant itself. However, in the case of Norton v Charles Deane Productions Ltd (1970) 214 EG 559, Swanwick J put a wider construction on a restrictive covenant in the following terms: ‘that the lessee should not do or permit to be done on the demised premises or any part thereof anything which might be, or grow to be, a source of nuisance, damage, inconvenience or annoyance to the lessors, or the owners or occupiers of any adjoining premises’. The learned judge held that that covenant, as he put it, ‘was not really intended to have anything to do with physical contact between the houses, but was intended to protect neighbouring properties’. The complainants in that case were occupiers of premises which were opposite the premises in question and three doors away from it. Mr Pearson submitted that, in the context of the Rent Acts, which protect the right of occupation of tenants, the word ‘adjoining’ should be given a narrow or restricted meaning and that if that meaning was accepted, then none of the three tenants of no 12 were adjoining occupiers because their premises did not physically touch Flat 2. He conceded that, as there was a party wall between the defendant’s flat and the flat occupied by Dr A1 Shalabi at no 11, Dr Al Shalabi was an adjoining occupier and conduct relating to him could be taken into account; but he submitted that, if the complaints of the three tenants of no 12 were disregarded and only the complaints of Dr Al Shalabi were considered, then it was not reasonable for the judge to have made an order. It was said that the trouble started between the defendant and Dr Al Shalabi in December 1981 when the central heating was cut off, but until then there had been no difficulties between them. I should say, in fairness to all the parties, that the absence of central heating was only one of a number of complaints which the defendant made to Dr Al Shalabi after he took over the premises, all of which the judge rejected except the complaint about central heating. It is unclear why the central heating was turned off. The fact is that the boiler from which the heating for no 12 came was physically in no 13, which of course remained in the ownership of the Crofton Hotel, and there is no finding in the judgment that Dr Al Shalabi deliberately cut the central heating off, although it may be that the absence of central heating was something which the defendant, especially in the winter, found annoying and unpleasant. Mr West, for the plaintiffs, submitted that the word ‘adjoining’ has more than one meaning: it is not confined to physically touching but it can also include ‘neighbouring’. He submitted that in this case there was a close relationship between all the tenants in no 12. They all occupy the same building; they all share the same entrance; they all share the same common doorway and the flat of each of them was connected by the stairs and hallway. He submitted that, in those circumstances, a wider meaning should be given to the word ‘adjoining’ than the narrow meaning sought to be put by Mr Pearson. He pointed out, first of all, some of the anomalies which would arise in practice if the narrow meaning were given. To take this very case, it was accepted that Dr Al Shalabi’s flat at no 11 adjoined the defendant’s flat at no 12, but it might be that conduct by the defendant in her flat would be far more annoying to other occupiers of the same building than it would be to somebody like Dr Al Shalabi, who lived next door, separated by a thick and possibly sound-proof party wall and with a separate entrance. He also pointed out that if Mr Pearson’s meaning were right, it would mean that you could have two tenants of flats on the same floor, separated by a narrow passage or hallway and, because the flats were not touching one another, neither tenant would have any remedy against the other in respect of a nuisance or annoyance, and the landlord could not take proceedings for possession because one of those tenants was causing annoyance to the other. He also pointed out that all the first five Cases in Schedule 15, which set out the grounds on which a landlord is entitled to possession from a statutory tenant, involve cases where the landlord’s interest is being adversely affected, and he submitted that the purpose of Schedule 15 was to protect the landlord’s interest, and that a narrow interpretation of the word would be wholly inconsistent with that. He added that, if the landlord was not able to take proceedings for possession on the ground of nuisance on the complaints of other occupiers of a building which was divided into flats, his interest might be seriously affected because he would be unable to let the other flats in the building at reasonable rents. He drew our attention to the case of Lightbound v The Higher Bebington Local Board (1885) 16 QBD 577 and in particular to the judgment of Bowen LJ at p 584, where the court was concerned to define the meaning of premises ‘fronting’, ‘adjoining’, or ‘abutting’ on the street within the meaning of a section of the Public Health Act. He referred to the passage in the judgment of Bowen LJ in which he indicated that it was necessary to look at the subject-matter of the section and see what was its scope and object in construing the individual words which appear in the section. That approach was also adopted in the case of the Mayor, etc of the Borough of New Plymouth v Taranaki Electric-Power Board, a decision of the Privy Council reported in [1933] AC 680, where again the Board was concerned to construe the meaning of the word ‘adjoining’. Lord Macmillan, giving the judgment of the Board at p 682, said this: Their Lordships agree with the learned judges of the Court of Appeal that the primary and exact meaning of ‘adjoining’ is ‘conterminous’. At the same time it cannot be disputed that the word is also used in a looser sense as meaning ‘near’ or ‘neighbouring’. But, as Lord Hewart CJ said in a recent case, where the question was as to the meaning of the word ‘contiguous’: ‘It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly, and not loosely or inexactly. Upon those who assert that that rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning must be preferred.’ Mr West submitted that, when one looks at the scope and purpose of the Rent Act, the broad meaning — which is admittedly a secondary meaning of that word — must strongly be preferred because of the anomalies in adopting the literal meaning. This point has never previously been decided by the Court of Appeal. It is possible that that is because of a short passage in the present Vice-Chancellor’s classic work on the Rent Acts which I cite from the 10th edition, although as we know from the judgment of Judge Brown, it was certainly in the 8th edition, which was published in 1955, and very likely earlier still. The passage, at p 271 of the 10th edition, is in the following terms: The word ‘adjoining’ has been construed as meaning ‘contiguous’, so that the occupants of a second floor flat have been held not to be ‘adjoining occupiers’ to the ground floor flat beneath them. 127 Then he cites the Marquess of Northampton Estate v Bond case. The text continues: But this seems too strict a view, for one meaning of the word is ‘neighbouring’ and all that the context seems to require is that the premises of the adjoining occupiers should be near enough to be affected by the tenant’s conduct on the demised premises. I accept that statement as an accurate statement of the law. The premises here, which were occupied by the complainants, were in the same building as that occupied by the defendant. They were sharing the common parts, including the common entrance, with the defendant, and in my judgment they were near enough to be affected by her conduct on the premises. And that was the view that was taken by the recorder, who did not have the advantage of the citations from authority which we have had, but did have various textbooks cited to him; and he expressed the view that ‘not only the occupiers within no 12 upstairs, be they tenants or other persons lawfully on the premises were adjoining within the meaning and spirit of Case 2 but also the occupiers of Flat 3 in no 11 were adjoining’. I agree with the view that the recorder took on that point of law, so that Mr Pearson’s primary ground of appeal fails. There were essentially two other grounds of appeal. The first was that the recorder failed to consider the exercise of his discretion under section 100(2) of the Rent Act 1977 to suspend the execution of the order for possession indefinitely so long as the defendant did not commit any conduct which was a reason for annoyance to adjoining occupiers. Section 100(2) is in the following terms: (2)  On the making of an order for possession of such a dwelling-house, or at any time before the execution of such an order (whether made before or after the commencement of this Act), the court, . . . may — (a)  stay or suspend execution of the order, or (b)  postpone the date of possession, . . . We were told that there was no application before the court that the order should be stayed or suspended, but that the recorder did postpone possession for 10 weeks. His reason for not staying or suspending the order altogether was this: he said: I know that her behaviour appears to have improved since May 1983 when the police were called and when the plaintiff’s solicitors again threatened to take immediate action to apply to the court to prevent the defendant doing something. I assume at that stage the defendant received positive and strong advice that has caused her to behave pending the outcome of this action. I have no doubt that if I were not to grant an order for possession her behaviour would rapidly deteriorate and once again she would be accosting the other occupiers accusing them of whatever occurred to her and using foul language to them and others. The judge had the advantage, which we have not had, of seeing the defendant in the witness-box and the other occupiers over a period of 10 working days. There is no ground on which we could interfere with the judge’s discretion in respect of that matter, the word in the subsection being ‘may’, which imports a discretion in the learned judge. The final ground of appeal is that the recorder, when considering the question whether it was reasonable to make an order for possession, misdirected himself, and then particulars are given of five matters in respect of which the recorder is said to have misdirected himself. The recorder dealt with the question of reasonableness in the following terms: I turn to consider whether it be reasonable to grant an order for possession against this tenant. Apart from those matters that I have found proved I bear in mind that the defendant withheld rent from July 1982 and made no apparent attempt to pay it until July 1983. I bear in mind that in my opinion the defendant’s case has been grossly magnified and has substantially failed and in my opinion the nature of the magnification of the defendant’s case is such as could not occur by accident. She and her advisers must have known what Mr Purdue and Mr Salmon would say when they were called and yet not only did they persist in their inflated counterclaim but indeed the very inflated figures were not included until October 18 or 19 1983, that is some 2 or 3 days after this hearing commenced. When for example one sees the specific pleading additional heating £300 and sees that the sole support for that is a schedule that does not support a round figure let alone any other figure I am afraid I am driven to the conclusion that this is a defendant who with her advisers is prepared to put forward any case to cause difficulty to the landlord. The defendant has lied in my view. The defendant continued her nuisance and annoyance to adjoining occupiers after issue of the proceedings. On the other hand, I bear in mind that the defendant was complaining of lack of central heating in January 1982 and no steps have been taken to provide her with that heating and, once it had been pointed out to her, from September 1982 she was complaining about the lack of a rent book. However, as against those two matters and in particular the plaintiff’s unfortunate reliance on his solicitors advice as typified in paragraph 5 of their letter of September 28 1982, page 30 in the agreed bundle, she did not in fact receive a rent book. I take into account all the criticisms made by the defendant’s counsel of the plaintiff’s conduct and the criticisms mainly unfounded made by her in her evidence. However, having heard the defendant at length and having seen a procession of witnesses give evidence of her conduct I am driven to the conclusion that it is reasonable in this case to make an order for possession. The question of reasonableness is a matter for the discretion of the trial judge. The recorder in this case properly applied his mind to all the relevant circumstances relating to reasonableness and it would be quite impossible for this court to interfere with that finding. Accordingly I would dismiss this appeal. Agreeing, WOOD J said: The plaintiffs in this action are claiming possession of Flat 2, 12 Queens Gate, London SW7. The defendant is a statutory tenant and therefore the landlord can only obtain an order for possession if he can bring the case within section 98 of the Rent Act 1977 and the terms of the 15th Schedule. The relevant wording of section 98 reads thus: 98(1)  Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (b)  the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. The landlord, therefore, has to prove that it is reasonable and also has to establish a situation under one of the Cases in Schedule 15. In this case the landlord sought to rely on Cases 1 and 2. Case 1 refers to non-payment of rent and Case 2, which has formed the major argument in this appeal, is reliance upon acts which are ‘a nuisance or annoyance to adjoining occupiers’. I do not wish to add anything to what my lord has said about the discretion of the learned recorder as to reasonableness, nor as to the point which was raised on the appeal on the postponement of the order under section 100. The main point taken by Mr Pearson, for the appellant, was that when construing the words in Case 2 of Schedule 15, ‘nuisance or annoyance to adjoining occupiers’, ‘adjoining’ should be given a restricted meaning, namely ‘contiguous’, and it falls, therefore, to this court to interpret that phrase in this particular statute. He helpfully referred us to a number of authorities, but they are distinguishable upon their facts and do not provide great assistance. However, there are two passages in the earlier authorities to which I would refer and from which I derive help in construing this statute. The first is in the case of Cave v Horsell [1912] 3 KB 533. The passage to which I would refer is at p 543, where, in dealing with matters of principle before dealing with the facts, Buckley LJ said this: There are few words, if indeed there be any, which bear a meaning so exact as that the reader can disregard the surrounding circumstances and the context in ascertaining the sense in which the word is employed. Not even words expressive of number escape the ordeal. There are trades in which a dozen does not mean twelve nor a hundred five score. There are words upon whose primary meaning there is no room for doubt. I may instance again the word ‘dozen’. But this is not true of all words. Many are not of fixed, but of flexible meaning. Such a word may have many primary meanings. It is for the reader, looking at the context, to say in which of those meanings it is employed. In making that determination, he must look at the subject-matter dealt with by the language in which the word occurs and see what is the scope and object of the instrument in which he finds it. Much discussion has passed before us upon Lord Wensleydale’s language in Grey v Pearson. He is not speaking of the meaning of a single word. A single word may have a primary or a derivational or a conventional or an ordinary or a precise meaning. But it is impossible to say that a single word has a grammatical meaning. Lord Wensleydale is speaking, not of a word, but of a sentence, of a series of limitations in a will, and his words are that the grammatical and ordinary sense of the words is to be adhered to, unless, &c. There are three words, ‘adjoining,’ ‘adjacent,’ and ‘contiguous,’ which lie not far apart in the meaning which they convey. But of no one of them can its meaning be stated with exactitude and without exception. As to ‘adjoining,’ the expression ‘next adjoining’ or ‘immediately adjoining’ is common and legitimate. This expression at once conveys that two things may adjoin which are not next to each other. ‘Adjacent’ conveys that which lies ‘near to’ rather than that which lies ‘next to’. ‘Contiguous’ is perhaps of all three the least exact. Any one of the three may by its context be shewn to convey ‘neighbouring’ without the necessity of physical contact. 128 The cases which have been referred to serve as guides but not as authorities binding me in determining the meaning of the word ‘adjoining’ in this lease. I must read the lease, and determine what is the meaning of the whole of this covenant containing, as it does, this word. If for ‘lease’ one read ‘statute’ in that last paragraph, that is the function which I would seek to perform. The other passage is in the case already referred to, Lightbound v The Higher Bebington Local Board (1885) 16 QBD 577 and the passage I wish to refer to is on p 584 where Bowen LJ said: In construing such words as ‘front’, ‘abut’, and ‘adjoin’, in this Act of Parliament, actual contiguity is not necessary in order that the terms should be fulfilled. The case of Wakefield Local Board v Lee shews that. We have to go further and ascertain what is the true statutory meaning of this term as used in this section; and there is a broad rule of construction, of which the present case, so far as there is any law involved in it (which is very little), is to my mind an illustration. It is that in construing the words you must look at the subject matter of the section and see what is its scope and object. Thus, I must look at this Act, bearing in mind that the word ‘adjoining’ is capable of a secondary meaning, namely ‘neighbouring’. The scope and purpose of the Rent Act, in one of its forms, is to give protection of occupation to the tenant, which protection would not be available at common law. The landlord’s right to obtain possession is strictly limited but, at the same time, the interests of the landlord must be protected. As Mr West has pointed out in his submission, when one looks at the wording of Cases 1 to 5 of Schedule 15, it can clearly be seen that in each of those Cases protection is intended for the interest of the landlord. Turning to Case 2, and when considering the true meaning of the word ‘adjoining’, it is right to look at the sort of evidence which might be available or alleged to support the allegation of nuisance and annoyance. It might be drunkenness, abuse, noise, obstruction, or violence, and one can think of others; but if the restricted meaning for which Mr Pearson argues is given to the word ‘adjoining’, then the interests of the landlord would clearly not be protected. It is possible to argue that, if the landlord owned only one flat in a block of flats or a subdivided house, then it might only be necessary to give the ‘restricted’ meaning; but even in that case, if the behaviour of his tenant was such as to fall within Case 2, he would be besieged with complaints and that would necessarily aggravate his relationship with the neighbours. In my judgment if one did not give the wider meaning to the word ‘adjoining’ there would be many cases which would amount to anomalies or total absurdities. One instance has been given as an illustration by my lords, namely, in the present case where Dr Al Shalabi is next door entering his flat by a different front door and a different door to his flat; he would be within the phrase: on the other hand those persons using the same front door and the same staircase as the plaintiff would not be. Likewise, one could envisage a situation where the door of one flat opened on to a narrow landing and immediately opposite there was the door to another flat which would not be adjoining in the restricted sense. Thirdly, one could envisage those cases, which His Honour Judge Harold Brown had in mind, where there was a common use of a bathroom, lavatory, or other facilities. In my judgment the meaning of the word ‘adjoining’ is not restricted to the meaning of ‘contiguous’. Each case must depend upon the facts as found by the learned judge trying the action. It is a question of degree. There may be other ways of approaching the issue, but it may be useful to consider it in this way; namely, whether the relevant premises are sufficiently close or related, so that the behaviour or conduct of the tenant of the one affects the access to, or occupation or enjoyment of, that other by its occupiers. With those few words, I agree that this appeal should be dismissed. The appeal was dismissed with costs; the appellant’s contribution being assessed at nil. The order for costs was not to be drawn up for 10 weeks.