England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Thursday, 19th September 2002

Thursday, 19th September 2002

1. LORD JUSTICE SCHIEMANN: Before me is an application made by Mr Denman on behalf of the proposed respondents to an appeal. This is a case where a preliminary issue was tried by the judge and the judge ordered costs to be paid by the claimant to the defendant. The order was that only two-thirds of the costs should be paid, and this is substantially, as I understand it, to reflect the conduct of the defendant who, as the judge found, was engaged in manoeuvres to deprive the Inland Revenue and VAT authorities of their appropriate contribution from the defendant and his company. The judge was extremely disparaging of the defendant's honesty in general, but for reasons clearly set out in his judgment he nevertheless found for the claimant and ordered the defendant to pay costs.
2. The claimant sought permission to appeal and that application came on in 7th May before Chadwick LJ, who adjourned it into this court to be heard as an opposed application, suspended the enforcement of the order as to costs but gave permission to the defendant to apply to this court to set aside that part of his order which related to costs. On 1st August 2002 the defendant made an application (which is the application with which I am now dealing) first of all seeking to remove the stay of execution in relation to costs imposed by Chadwick LJ; second, seeking an order for the interim payment of some proportion in any event of that proportion of the defendant's costs which the claimant was ordered to pay; and third, asking for an order by the court that the claimant provide transcripts of the oral evidence heard by the judge and that if they do not, the claimant's appeal be dismissed.
3. The adjourned application for permission to appeal is due to be heard, as I understand it, next month, in just about five weeks time from today.
4. The argument in relation to costs and the lifting of the stay is essentially this: that the facts of the present case are such that the Court of Appeal, even if it allows the appeal, will direct a retrial, and in those circumstances the real question will be who will pay for the wasted trial. There will be an argument which has on the face of it some force that the claimant is now taking a point which was available to him very much earlier, and the argument will be first, that because of this delay he should not have permission to appeal at all (clearly if that argument succeeds the question of transcripts will not arise); or second, if he does get permission to appeal the appeal should be dismissed; and third, even if the appeal is allowed the costs of the appeal should be the defendant's because of the claimant's delay in taking the point. I do not set the matter out in its full complexity but that is the substance of the point that is taken, and it is a point of some force.
5. However, in my judgment, it would not be right to make an interim order in this case where the whole matter is going to come before this court sitting in full with two judges within five weeks, and where the amounts involved are not enormous. The position of the defendant is that on the finding of the judge he or his company have retained assets from the Revenue - where they are one does not know - which he may be liable to reimburse the Revenue. There is a dispute between the parties as to how much each of them are possessed of, which I am not in a position to resolve. I do not think as a matter of exercising my discretion that it is appropriate to make an order for an interim payment at this stage in this litigation.
6. Turning to the matter of transcripts, the essence of the defence in relation to the proposed claim is that the primary point sought to be made by the claimant is one that he could have made very much earlier and gave no sign of making during the course of the trial. That is a forceful point no doubt for them to make on the application for permission to appeal. So far as the claimant is concerned he says that he concedes that his attention was drawn to the contract on a number of occasions and his attention was drawn to the page of the contract where his signature was present, and that he did not, during examination in chief or questions from the judge, state that the signature was not his. Moreover, he accepts that he gave the contract to Alexanders but he did not raise the issue about the identity of the parties that he now seek to raise. In those circumstances Mr Daniels says it would be disproportionate to require his client to pay now for the costs of securing any transcript which, as he argues, is not necessary for the resolution of the matters in dispute.
7. The position in relation to the Practice Direction is that by paragraph 5.15 of the Civil Procedure Rules (Spring 2002 edition) it is provided:

"When the evidence is relevant to the appeal an official transcript of the relevant evidence must be obtained. Transcripts or notes are generally not needed for the purpose of determining an application for permission to appeal."

8. The difficulty in the present case arises from the order by Chadwick LJ that the appeal follow the application for permission to appeal if, contrary to the defendant's contentions, it is granted. In principle, if it comes to an appeal it would be for the claimant to provide all necessary transcripts. I follow the defendant's argument, but it seems to me again as a matter of discretion in the present case, bearing in mind the time that has elapsed, the conduct of the defendant generally, the possibility that the application for permission to appeal may be refused altogether and the remaining discretion which will always exist in the court hearing any appeal, that it would be wrong for me to order the claimant to provide those transcripts. There is of course nothing, save possibly his indigence, to prevent the defendant trying to get those transcripts; although he has now left the matter so late that there may be some difficulty in actually securing them in time.
9. For those reasons which I have endeavoured to give this application is dismissed.
(Applications dismissed; costs of the application to be paid by the defendant; method of assessment of costs adjourned to the full court).