England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN BANKRUPTCY
(Mr Kim Lewison QC
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Tuesday 6th February, 2001

1. LORD JUSTICE DYSON: Mr Howell, who appears in person and who has presented this application with great skill, seeks permission to appeal against the decision of Mr Kim Lewison QC, sitting as a deputy High Court judge on 2nd October 2000, when he decided not to exercise his power to correct an order that had been made by him on 18th May 2000 in relation to costs. This application is for permission to appeal out of time.
2. The background to the matter is that the applicant introduced a tenant to property belonging to the respondents. He received rent and a deposit from the tenant which should have been passed on to the respondents. Some of this money was paid to the respondents, but £8,000 remained outstanding. The respondents issued a statutory demand on 23rd August 1999 which was not set aside on the applicant's application. A bankruptcy petition was then presented on 28th October 1999.
3. Late in 1999 the applicant started proceedings against the respondents in the Central London County Court for harassment and defamation, claiming damages of about £4,500. On 19th January 2000 a bankruptcy order was made against the applicant. On 21st January he paid £3,703 of the £8,000 that was outstanding. He paid that sum to the respondents' solicitors. The balance was set-off against the amount which he claimed by way of damages in the County Court proceedings.
4. On the same day the registrar made an order annulling the bankruptcy order, and he ordered the bankruptcy petition to be restored to the list and to be heard on 18th April, and the applicant to pay the costs. The applicant appealed against that decision - at any rate against the part of which ordered the petition to be restored to the list - on the grounds that the undisputed debt had by now been secured.
5. On 5th May, the deputy judge dismissed the appeal on the grounds that the applicant failed to attend. He ordered the applicant to pay the costs which he assessed at £1,500.
6. On 18th May the deputy judge heard an application to reinstate the appeal that had been dismissed and he decided, in the light of the applicant's explanation for his failure to attend, to reinstate the appeal. He allowed the appeal to the extent of saying that the petition should not be restored to the list.
7. What happened in relation to costs is what has given rise to this application for permission to appeal. At the end of his judgment on 18th May he said that the applicant would not be bankrupted, but the costs orders would all remain in place. There then followed discussion between the judge and the applicant and the advocate appearing for the respondents. The judge said that he had reinstated the appeal but had not discharged his costs order of 5th May.
8. Next there was a discussion in which the judge appeared to indicate an acceptance of the point made by the applicant that the costs which the applicant should have to pay should be merely those thrown away by the adjournment of 5th May, and that insofar as the costs assessed in respect of that hearing included costs which would inevitably have been incurred in dealing with the appeal, the applicant should not be required to pay them. I say the deputy judge appeared to indicate that: for example, he said:

"Yes, that is a fair point."

9. in response to a submission made by the applicant. The learned deputy judge eventually said that, bearing in mind that Mr Howell had succeeded in escaping from the threat of bankruptcy, it seemed to him that he should properly regard the outcome of the hearing as a "score draw" and that the right order to make on the hearing was no order for costs.
10. A draft order was prepared. It was the subject of alterations, but ultimately the order which was approved by the judge contained the following elements in relation to costs:

"(2) that the said Appeal be allowed in so far as the Petition for Bankruptcy against the Appellant be dismissed, but that the Appellant do pay to the Respondents the costs of and occasioned by the bankruptcy petition and the statutory demand up to and including the hearing of 21st January 2000 such costs to be subject to detailed assessment if not agreed.

(3) that the Order of 5th May 2000 whereby the Appellant was ordered to pay to the Respondents costs assessed at £1,500 shall stand."

11. The applicant was dissatisfied with that order. He considered that in two respects it failed to reflect what the judge had indicated during the course of argument on 18th May that he intended to decide in relation to costs. First, he contended that paragraph 2 of the order of 18th May did not reflect the judge's statement that the costs orders should all remain in place. He tells me that there were two previous costs orders, one in relation to the failure to set aside the statutory demand and the other in relation to the annulment application. The applicant submits to me that he thought that the judge intended that those costs orders should remain untouched, but that no other order as to costs made prior to 21st January should stand.
12. The second complaint concerned the £1,500. Mr Howell complained that since the £1,500 included some costs which were not thrown away by the adjournment but which were incurred in preparing for the hearing of the appeal itself, an order that the costs of £1,500 should stand did not reflect the plain intention of the judge.
13. The deputy judge heard an argument on those two points and gave a short judgment on 2nd October. He said that the order that had been through several drafts was, in its final form, referred to him for approval and he approved it. He pointed out that the only jurisdiction which he had to alter an order once it had been drawn up and sealed was under the slip rule, but in any event he said that the order, in both of the respects now sought to be challenged, did in fact reflect his intention. There was no mistake. Accordingly, the order should stand in its form as approved by him.
14. Mr Howell seeks permission to appeal out of time on the grounds that the judge was wrong in both respects. I am bound to say that in relation to the £1,500 point I do have some sympathy with the argument which he seeks to advance. It does look as if the judge intended to make an order that the applicant should pay the costs wasted by the adjournment but no more, and it does appear from a comparison of the statements of costs for 5th and 18th May hearings that the £1,500 included an element of preparation for the hearing of the appeal which one would otherwise have expected to find included in the statement of costs for 18th May. I find it difficult to quantify, but it looks as if it may be a sum in the order of £300 or £400.
15. But that said, it is clear that whatever the judge may have said in exchanges following his judgment on 18th May, he did intend that the £1,500 order for costs should stand and he did not resile from that when he had the opportunity of saying that that was not what he intended on 2nd October.
16. The position is not entirely satisfactory. But it seems to me that the judge was entitled, despite what he may have said during the exchange after his judgment on 18th May, to say that the £1,500 order should stand in the exercise of his general discretion in deciding what was the appropriate order for costs to make in this case.
17. I would add, as I pointed out to Mr Howell, that in any event this is a second-tier appeal which is governed by section 55(1) of the Access to Justice Act 1999. Accordingly, I can only grant permission to appeal if the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. Although I have no doubt that the sum involved is a significant sum so far as Mr Howell is concerned, the point plainly does not raise any important issue of principle or practice, and in my judgment there is no other compelling reason for the Court of Appeal to hear an appeal on that point.
18. I turn then to the second point, which concerns the orders for costs prior to 21st January. The answer to this point is similar to that that I have just given in relation to the first point. It seems that the judge did intend, as he said on 2nd October, that Mr Howell should pay the costs up to and including the hearing of 21st January. In his judgment of 2nd October he gave his reason for reaching that conclusion, and he said that for that reason the drafting of the order of 18th May was not an accidental slip or omission.
19. Here too the point clearly does not raise any important issue of principle or practice. In my judgment, this being essentially a question of the exercise of discretion and the deputy judge having had the opportunity of considering carefully whether the order did reflect what he intended, there is no other compelling reason for the Court of Appeal to hear an appeal.
20. Accordingly, for all these reasons, I would refuse permission to appeal.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)