COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Neuberger
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
| CHRISTOPHER MORTON JOLLY||Claimant/|
|DAVID EDWARD JAY|
LINDA ANNE JAY
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Cheryl Jones (instructed by Seakens & Co) for the Respondents
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Brooke :
This is the judgment of the court, to which all its members have contributed.
“because the Court wishes to consider the proper approach for an appeal Judge to take when a Respondent applies for costs at an oral hearing of an application for permission to appeal following the refusal of permission to appeal on paper.”
The letter continued:
“Lord Justice Brooke has asked me to write to you … to inform you of the question with which the Court will be concerned since the existence of the Judge’s order might affect any order for costs made at the hearing on 7th February if Mr Jolly is not successful.”
“The attendance of the appellant is required.
The respondent(s) may attend or submit written representations before the hearing but will not usually be awarded the costs of doing so.
If a respondent submits written representations or other written material it must be served on the applicant (or his/her solicitor if any) at least two clear days before the hearing.”
“Notice of the hearing need not be given to the respondent unless the court so directs. The appeal court will usually so direct if the appellant is asking for a remedy against the respondent pending the appeal.”
“If notice of the hearing is to be given to the respondent, the appellant must supply the respondent with a copy of the bundle (see paragraph 5.16) within 7 days of being notified, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application.”
“In the event that permission to appeal is not granted, [the defendants] ask the Court to award their costs of attending in that this is necessary to ensure that the Court receives an accurate picture of the matter.”
“His application is opposed by Mr and Mrs Jay, who appear through counsel, Ms Cheryl Jones, who has provided me with a skeleton argument, as has Mr Jolly. The position of a respondent to an application for permission to appeal, particularly when that application, having been dismissed, is renewed orally, is somewhat unclear and has not been worked out by the courts. Mr Jolly suggests that it was inappropriate for Mr and Mrs Jay to be represented on this application and to make submissions to me. I do not think those criticisms are justified. The position of a respondent on an application of which he or she has notice, such as the present, namely a renewed application for permission to appeal, is difficult. Some respondents let matters take their course. Some respondents think it right that they should be there with a view to knocking out the appeal if they can. The problem is particularly acute where the applicant is a litigant in person, even a litigant – or perhaps I should say especially a litigant - as persistent and as expert as Mr Jolly. In some cases the court thinks the respondent’s appearance is unhelpful; in other cases it thinks it is helpful; in other cases it thinks it is necessary. In the present case I have certainly found Ms Jones’ skeleton helpful, and I think that any criticism (and to be fair it was not a very strong or bitter criticism, but criticism there has been) of Mr and Mrs Jay’s legal advisers in representing them today, is misconceived. ”
After judgment was delivered, the respondents asked for their costs.
“Permission is required from the Court of Appeal for any appeal from that court from a decision of a county court or the High Court which was itself made on appeal.” (Emphasis added).
“There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 54(4) of the Access to Justice Act 1999 and rule 52.3(3) and (4).”
“Any person served with the application shall be entitled to appear and be heard.”
In R v Secretary of State for Wales ex p Rozhon  CAT 27th April 1993 (summarised in  COD 111) this court held, as a general rule, that the costs of an application under O94 r 12 should follow the event.
“Furthermore, Order 53 applications are made ex parte and a respondent is in general unaware that such an application has been made unless and until leave is granted. He has no right under the rules either to appear on the application or to serve evidence.” (Emphasis added)
“Such submissions should not be required, the respondent being entitled to rely on the decision in the lower court and the judgment as his or her submission. If he or she does make a submission, the costs should not be recoverable. It seems illogical, however, to prohibit such a submission, especially as respondents already have the right to apply to have leave to appeal rescinded, where leave to appeal has been granted ex parte (ie in the absence of the respondents).”
“Unless the Court otherwise directs a respondent need not take any action when served with an appellant’s notice until such time as notification is given to him that permission to appeal has been given.”
“4.13 If permission is refused without a hearing the parties will be notified of that decision with the reasons for it. The decision is subject to the appellant’s right to have it reconsidered at an oral hearing. This may be before the same judge.
4.14 A request for the decision to be reconsidered at an oral hearing must be filed at the appeal court within 7 days after service of the notice that permission has been refused. A copy of the request must be served by the appellant on the respondent at the same time.....”
Paragraphs 4.15 and 4.16 apply to the permission hearing. We have set out their provisions in paragraphs 10 and 11 above and need not repeat them here. CPR 52 PD does not deal specifically with the costs of the permission hearing.