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
ADMINISTRATIVE COURT
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London, WC2 Wednesday, 9 October 2002

Wednesday, 9 October 2002

1. LADY JUSTICE ARDEN: This is an application for permission to appeal against the refusal of Scott Baker J to grant an extension of time for making an application to challenge a summary assessment.
2. The background is that the appellant had sought judicial review against a decision of the Law Society but had decided not to proceed with the proceedings and possibly had written to the court stating that he wished to withdraw them. However that may be, nthe matter came before Harrison J on 25 September 2001. The Law Society was represented by counsel but the appellant was not present. Harrison J dismissed the application with costs against Mr Thompson and he summarily assessed the costs in the sum of £3,069.39. However, because the appellant was not present he added that the appellant was to be at liberty to apply within 28 days if he wished to challenge the summary assessment of costs.
3. The order of the court did not come to the attention of the appellant until 25 January 2002, or shortly thereafter. On that date he was served with a statutory demand in respect of the judgment debt. He then realised that an amount of costs had been awarded against him and asked to see a copy of the order which was sent to him by the solicitors for the Law Society.
4. On 14 March 2002 the appellant applied for an extension of time, that is some six weeks after the date on which he received a copy of the order of the court, containing the proviso to which I have referred. At or about this time he applied to the solicitors for the Law Society for a breakdown of their costs and he received the statement of costs which was before the judge when he made his summary assessment. At this time the appellant's mother was unfortunately very ill and in due course she passed away in August 2002. That was not a matter raised with the judge. The judge held that he had a discretion to exercise. He took account of the fact that the delay in making the application was considerable and that the appellant would probably only be successful to a modest amount if he was successful in the application to have the summary assessment reconsidered. For that purpose it seems that he had before him a schedule headed "Disputed Items Schedule", which contains a number of matters which the appellant seeks to challenge. Accordingly the judge dismissed the application.
5. The appellant now seeks permission to appeal. The first point is that an appeal would not be a rehearing of the application for an extension of time. He would have to show that the judge was wrong in the way he exercised his discretion, because he left out of account a matter which was material or on the grounds that his decision was outside any reasonable ambit of difference of opinion and was such that no reasonable tribunal could make.
6. In my judgment an appeal on that basis would not have a real prospect of success. First, there was a significant delay between receiving a copy of the order and making the application. The appellant is a solicitor and he must have known that if he did not attend on a hearing then it was likely that an order would be made against him for costs, and he would moreover have known that if there was an order for costs it would be likely that the court would make a summary assessment. If he did not know about the hearing and the date for the hearing but nonetheless received a copy of the order in January 2002, he must also have known that if he was going to make an application out of time he would have to do so very promptly; and that did not, as it seems to me, happen. He did not ask for a breakdown of costs until March. Now I appreciate that there were personal circumstances, that is the illness of his mother, but that was not a matter put to the judge. It is not mentioned in any of the appellant's statements and therefore the judge cannot be faulted for not having taken that factor into account.
7. What the judge did was look at the disputed items and form a view about whether or not it was worthwhile proceeding with the appeal. He had before him the disputed items schedule. He reached the view that the success on appeal would probably be about half the bill. So he was taking the amount of figures that were challenged. But when one looks at those figures there must be some difficulty about pursuing some of these points. For instance, there is a challenge to three hours spent at the hearing, whereas the hearing itself was 40 minutes. There are no details given as to travelling and waiting and I think Mr Thompson would accept that the time spent on that item would have to include time travelling and time waiting, and so the saving on that item is unlikely to be as large as he has provisionally assessed it. In other words I see no basis on which it could be said that the judge reached an unreasonable conclusion in saying the maximum success would be as he stated; indeed it seems to me that that was generous to the appellant.
8. In all those circumstances as I see it there is no real basis on which the judge's exercise of discretion can be attacked upon appeal and in those circumstances I must dismiss the application.
(Application dismissed; no order for costs).