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
QUEEN'S BENCH DIVISION
(MR JUSTICE DAVIS)

		Royal Courts of Justice Strand London, WC2 Wednesday, 30th October 2002

Wednesday, 30th October 2002

1. LORD JUSTICE TUCKEY: This is an application by Mr John Pepin for permission to appeal from the decision of Davis J dismissing with costs (which he summarily assessed at £650 and ordered to be paid within 21 days) an appeal from a District Judge's order for costs made against him.
2. The history of this matter is set out in the judge's judgment and I do not propose to repeat it. Put shortly, however, the present claim is one of several which the applicant has brought against the defendant, PC Watts, who is a serving police officer with the Surrey Police for whom the force solicitor, Mr Carey, has acted and continues to act.
3. The District Judge in the Guildford County Court was asked to strike out the present claim as an abuse of process because the complaints made against the defendant were already the subject of other proceedings. At a hearing on 21st January 2002 he transferred the application to strike out to the High Court because the applicant had made allegations of impropriety against the local court. However, he ordered the applicant to pay the costs of that day's hearing, which he assessed at £1,000, such costs to be paid after the conclusion of the substantive hearing. The District Judge's reasons for making this order are not material, permission to appeal having been refused by Cooke J against the merits of the decision. Cooke J, however, did give permission to appeal on the ground that Mr Watts had no liability for Mr Carey's costs and so the order offended against the indemnity principle.
4. The appeal on this point was heard by Davis J, who also allowed the applicant to argue that no order should have been made because the statement of costs prepared by Mr Carey did not contain the usual certificate to the effect that the costs claimed did not exceed the costs which Mr Watts was liable to pay. On this last point the judge accepted that the failure to provide a certificate was due to a forgivable misunderstanding of the relevant provisions, which were not mandatory. In his written material for the purpose of today Mr Pepin says that the absence of the certificate should have been fatal to the claim for costs since the certificate went to the very point he was making about the indemnity principle.
5. I do not agree. The absence of the certificate was not fatal. The merits of the applicant's point on the indemnity principle were fully considered by the judge and the applicant's prospects of successfully appealing the judge's decision must be measured by reference to his attack on that part of the judgment to which I now turn.
6. Having reviewed the authorities, the judge concluded that they showed that the indemnity principle was only offended if it could be shown that there was an agreement, express or implied, that under no circumstances would the party claiming them be liable for costs. The fact that such liability might be theoretical rather than practical was not conclusive. On this basis the judge said that the respondent did have such a liability. The situation was analogous to cases where a union agrees to pay the costs of one of its members or an employer pays the costs of an employee. Here the provisions of section 88 of the Police Act 1996 equated the position of the Police Authority and the Chief Constable to that of an employer and gave it the power to pay a police officer's costs but did not require it to do so, because the provisions say "may" rather than "must".
7. In his submissions in writing and before me this morning Mr Pepin reiterates that the officer here (as he was told by Mr Carey) has no liability and complains that a theoretical possibility is not enough.
8. The judge analysed the position of Mr Watts in a way which I cannot fault. It seems to me that there is, for the reasons he gave, a possibility that he might have to pay costs. The fact that it is theoretical is enough, and although Mr Pepin may not like it, this is well established by authority and there is no reason to think that he has any real prospect of changing it on appeal to this court. There is, in the event, nothing unfair about it, particularly in a case such as this where Mr Watts has faced a barrage of litigation, and Mr Pepin accepts that he could not complain if the officer had retained a High Street solicitor.
9. There are two further reasons for refusing permission to appeal. First, this is a second appeal. It does not raise any important point of principle or practice and there is no other compelling reason for this court to hear it. Second, in one of Mr Pepin's several excursions to this court he has already raised this point about the position of the solicitor acting for Mr Watts. In refusing permission to appeal to the applicant from another costs order made by a High Court Judge Pill LJ [2002] EWCA Civ 958 rejected the application and concluded that there was nothing improper in the arrangement between Mr Watts and Mr Carey and that the judge had been entitled to make the order which he did.
10. Mr Pepin also raises another point which he has tried to have considered in this court before, which is that a summary assessment of costs, which carries with it an obligation to pay within a fixed time, is unfair upon a litigant in person who is on income support and has no means and therefore is most unlikely to be able to pay. He submits that his claim will therefore be stifled by such an order.
11. The point arises on this application because, as I have already said, Davis J summarily assessed costs and ordered them to be paid within 21 days. The transcript of the hearing before Davis J shows that the applicant sought to have the payment postponed, and the judge was aware that he had the power to do so under the provisions of CPR 44.3.
12. The judge recorded that Mr Pepin was concerned that prejudice and unfairness would be caused to him if costs were summarily assessed. He said:

"I am afraid I cannot agree. I do not think it appropriate to stay the payment of any of these costs until the uncertain date of the trial being resolved."

He then said:

"The Rules clearly indicate that it may well be appropriate to order payment of costs essentially on a forthwith basis, and I can see no reason not to do so in this particular case."

It is clear therefore that the judge put his mind to Mr Pepin's point.

13. Whether or not to exercise the discretion to postpone payment is very much a matter for the judge who is making the order. It is not a matter with which this court will interfere unless there are grounds for thinking that the judge has plainly got it wrong. I can see no ground for saying that the judge got it wrong in this case, and so this point does not provide the applicant with any ground for appeal to this court either.
14. For those reasons this application must be refused.
Order: Application refused.