England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Monday, 30th April 2001

1. LORD JUSTICE MANCE: The applicant is not in court but I will deal with the matter in his absence, as I indicated at his request that I would do if he did not attend.
2. This is an application for permission to appeal against an order made by His Honour Judge Appleton, sitting on appeal in the Preston County Court, on 7th December 2000. His Honour Judge Appleton upheld an appeal by the respondents, Kindvital Ltd, against the costs element of an order of Deputy District Judge Haddleton made on 6th October striking out the applicant's claim. The applicant now seeks permission to bring a second appeal. That can only be pursuant to CPR Part 52.13 according to which the Court of Appeal will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it.
3. The background to the case is that the applicant had issued a claim for re-entry and removal of certain fixtures and fittings from the premises of the respondents, the landlords. That claim was struck out by the deputy district judge - and this is not the subject of the present application - on the grounds that it was brought incorrectly in the name of the applicant. The lease had been granted in January 1998 by the respondents, not to the applicant, but to Sphinx Company for International Trade Ltd. That is a company which appears to be owned and controlled by the applicant but is not in law the same as the applicant. The applicant was no more than a guarantor under the lease. His case is that certain fixtures and fittings were installed and that on vacation of the lease, following its forfeiture on 28th January 2000, he was entitled to remove the fixtures and fittings as these were improvements and, he alleges, remained his property. However that claim failed before the deputy district judge on the ground (which no doubt may seem technical to the applicant but is nonetheless in law substantial) that it was brought in the name of the applicant who was no more than a guarantor and had no conceivable title. The proper claimant, if anyone, was the tenant International Trade Ltd.
4. When the order was made by the deputy district judge striking out or dismissing the claim on 6th October the deputy district judge was critical of the respondents' solicitors when it came to considering costs. That was because, apparently, no statement of costs had been served on the claimant at least 24 hours before the hearing as required by practice direction 44 paragraph 13.5 (4) which reads:

"The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought. The statement of costs should be filed and the copies of it should be served as soon as possible and in any event not less than 24 hours before the date fixed for the hearing."

5. That is in the context of the paragraph dealing with summary assessment which provides:

"13.1 Whenever a court makes an order about costs which does not provide for fixed costs to be paid the court should consider whether to make a summary assessment of costs.

13.2 The general rule is that the court should make a summary assessment of the costs."

6. It may be material to point out that no formal application seems to have been before the court on 6th October, but the respondents raised the point that the claim had been brought by the incorrect claimant and the court acted on it and no objection is now taken to that. However the deputy district judge did carry his criticism of the respondents' solicitors failure to serve a statement of costs in time to the point where he said this, according to the brief summary of his judgment:

"The schedule of costs filed by the defendant was not served on the claimant not less than 24 hours before this hearing and accordingly the court makes no order as to costs."

7. That aspect of the deputy district judge's order was appealed to the circuit judge. It appears from correspondence that the proceedings before the circuit judge were, unfortunately, not tape recorded and it has therefore proved impossible for the applicant to procure a transcript. He has filed with this court notes of the judgment prepared by the solicitors for the respondents. I think that these have not been approved by His Honour Judge Appleton although an attempt was made by this court rather late in the day to obtain his views. I understand he has been ill. The applicant has stated in his most recent letter to the Court of Appeal office dated 28th March 2001 that the record contained in these transcribed reasons is, in his view, biased against him. On the other hand, having read the reasons it seems to me they are totally coherent and, on the face of it, do not appear to evidence any such bias. They are in fact in considerably greater detail than the very brief record of the deputy district judge's reasons.
8. His Honour Judge Appleton recounted the history. He referred to the effect of the new Civil Procedure Rules. He identified, in particular, the correct approach which he should adopt. He said:

"Every appeal involves a review of the decision of the lower Court and it is provided that I can overturn that decision if, on an appeal before me, I consider that the decision was wrong, that it was unjust or comprised a serious irregularity. In order to enable me to determine whether or not the original judgment was wrong, I have to be satisfied that the decision was not a reasonable one to come to or not within a reasonable range of decisions that the judge below could have reached in all the circumstances or, alternatively, that his decision involved a serious irregularity."

9. He recounted counsel for the present respondents' (then appellants') submissions. Mr Turner made a preliminary point relating to the fact that this was a directions hearing and it was reasonable for the defendant's solicitors not to expect to have to deal with costs on that day.
10. The second point was that the defendant's solicitors had taken the precaution of sending to the claimant out of court on 4th October, that is two days before the hearing, by first class post a costs schedule. The hearing to which the schedule related was to take place on 6th October which was a Friday and therefore the notice was posted on the Wednesday. The practice direction 13.5 (4) provides:

"The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought."

11. The circuit judge went on to recount the rest of the practice direction:

"The hearing in this case took place at 11.00 am on the 6th October and therefore, this should have happened by 11.00 am on the 5th. That, however, is not the end of the matter. Practice direction 13.6 provides that a failure by a party, without reasonable excuse, to comply with the requirements of the practice direction [will] be taken into account by the Court in deciding what order to make about the costs of the claim, hearing or application and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure. It provides that the Judge may disallow such costs but it does not say that he has to do so. The Deputy District Judge embarked upon no enquiries at all in relation to this and in exercising his discretion in trying to seek a balance and deal with the matter proportionately. Part 44 provides for the general rule and the factors to be taken into account upon the issue of costs. That general rule is that the successful party's costs are paid by the unsuccessful party. In the circumstances of this case, it seems to me that the arguments put forward by Mr Turner on behalf of the Defendant this morning leads me to the conclusion and does result in my finding that the decision on the part of the Deputy District Judge in this case was wrong.

Accordingly, the appeal succeeds.

I award the Defendant his costs both here and below, such costs to be the subject of detailed assessment if not agreed."

12. It is true that the presumption of receipt deriving from posting by first class is only a presumption of receipt after two days rather than 24 hours. Furthermore, in fact the costs schedules were not received until Monday 9th October, that is effectively four working postal days, but the reasons given by the circuit judge appear to me to be relevant and soundly based reasons for considering that the district judge stopped too short and too abruptly when he proceeded from the bare fact of failure to serve not less than 24 hours before the hearing to a conclusion that "accordingly the court makes no order as to costs".
13. The applicant in his skeleton argument says that all that happened, in effect, was that the district deputy judge and the circuit judge formed different views as to the interpretation, or generosity with which one should interpret, the same rules looking at the same books. He, furthermore, makes the point that, since his whole claim was struck out on what might be regarded as a technical ground, he should be entitled to take the benefit of the technical point that the costs schedule was not served as prescribed by the rules.
14. As to the first of those points, it seems to me that there was more between the deputy district judge and the circuit judge than a difference in their generosity of approach. The deputy district judge did err in principle in stopping short, as far as can be seen, with the bare fact of default and moving straight to the conclusion that no costs should flow. It seems to me in the circumstances that the circuit judge was entitled and bound to re- exercise the discretion. He has done so on relevant reasons. Whether I would have come to the same conclusion or not is neither here nor there. Whether I might have made some allowance for such extra costs as might be incurred due to the fact that a detailed assessment will now be necessary is neither here nor there. I do not think his decision can possibly be said to raise any important point of principle or practice or give rise to any compelling reason for an appeal, nor do I think it could possibly be regarded as one at which no reasonable circuit judge could have arrived if that were the test.
15. As to the argument that the striking out of the claim on some technical ground should justify the weight given by the deputy district judge to the default in respect of the costs schedule, the two matters were unconnected; while the former went to the substance of the whole action, the latter required to be considered as a matter of discretion. It was incumbent on the deputy district judge to consider whether it was clearly proportional to deprive the successful defendant in the action of all the costs in the action. In my judgment, it was not.
16. I have already addressed almost the whole of Mr Abdelfattah's letter of 28th March 2001 so far as that supplements the grounds on which he seeks permission to appeal. I do not think I need say anything further specifically about that. Mr Abdelfattah requires an extension of time to bring this application for permission to appeal, but in the light of the explanations he has given that would not trouble me if it were the only hurdle he had to overcome. I am prepared to deal with this application as in time, and I would have been prepared to give the appropriate extension of time if it had any prospect of success, but in the circumstances it seems to me the application would be bound to fail and I should neither grant it nor, for that reason, give any extension of time.
17. For those reasons this application fails.
Order: Application refused