England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BELL)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th June 2001

Tuesday, 19th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal against a decision of Bell J who, in turn, was considering an appeal from an order of Master Foster. The the order made by Master Foster was made on a strike-out application by the defendants. The pleadings in the case had been settled on behalf of the applicant by his brother, who is not legally qualified, and the Master concluded, and rightly concluded, that they were defective and that they needed to be amended. He then made an order that the costs occasioned by the amendment should be paid by the applicant.
2. The applicant appealed against that costs order. His complaint was that the solicitors who had been representing him before Master Foster had failed to put forward circumstances to the Master that would have justified him in not making a costs order. That is obviously a complaint against the solicitors but cannot be said to show in some way that the order made by the Master was defective.
3. The matter came on appeal before Bell J who, on 29th March 2001, dismissed the appeal. There is no transcript of what was said on that occasion, and that is unfortunate because, since the applicant was not represented and since the other side had chosen not to attend, there is no record as to the exact reasons given by the judge.
4. The solicitors for the other side have pointed out to the Court that this is a second appeal and that the restricted circumstances in which permission should be given on a second appeal therefore apply to this appeal. Quite clearly there is no point of general public importance involved.
5. Mr Musa's brother who with my permission has addressed the Court on his behalf, submits that there are pressing reasons why a second appeal should be allowed because there is likely to be a great injustice to his brother if this costs order stands. His brother is somebody who is partially sighted and therefore not somebody of any substantial means at all. The consequences, it is suggested, may be disastrous for him causing him to lose his home.
6. Those arguments it seems to me overlook important matters; firstly, whilst an order for costs has been made the question of enforcement has not yet been considered. If there was an application to enforce this order, the Court would be entitled at that stage to take into account the financial means of the applicant and decide how appropriately it should be paid. Of course there is the further possibility that the applicant may succeed in those proceedings and he would then be in a position to discharge his liability in respect of those costs.
7. In any event, if there is a failing in this case it is not on the part of the Court or the Master; it is on the part of the solicitors who acted for the applicant at the hearing. I am in no position to judge whether they were at fault or not. No steps have been taken before me which would in any way enable them to be heard, and I reach no conclusion in respect of the complaint, but if there are failings, then of course the applicant may have remedies against his solicitor. I know not.
8. However, I have to consider whether there is the slightest prospect of an appeal succeeding in the circumstances of this case. I am entirely satisfied that there are no prospects of success. The applicant in this matter had filed a defective pleading. Insofar as that led to costs being incurred, then it was right that he should have to to pay those if he was to proceed with his claim. That was the order that was made. There was no material put before the Master which would have justified any different conclusion, nor do I think any could have been put before him that would have altered the situation.
9. For those reasons if I were to allow the applicant permission to appeal, the only possible consequence is that the proposed respondents would be put to further costs. Those would inevitably again fall on the applicant. He would be bound to lose and there would be no kindness or consideration to him simply to allow him to pursue a totally unmeritorious appeal. For those reasons I am satisfied that permission should be refused, and I refuse it.
(Application for permission to appeal refused)