England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(PETER SMITH QC SITTING AS A DEPUTY JUDGE)

		Royal Courts of Justice Strand London WC2 Friday 8th March 2002

Friday 8th March 2002

1. LORD JUSTICE CHADWICK: There are listed for hearing two linked applications, 2001/1614 and 2001/1615, each for permission to appeal against an order made on 5th July 2001 by Mr Peter Smith QC sitting as a Deputy Judge of the High Court in the Chancery Division in proceedings between Mrs Philomena Cullen and her husband, Mr John Cullen, on the one hand, and Mr Simon Paterson, trustee in bankruptcy of Mr and Mrs Cullen, on the other hand. By that order the judge directed that Mr and Mrs Cullen should pay the costs of the hearing on that day, which he assessed summarily at £2,079.75.
2. The two applications for permission to appeal, one made by Mrs Cullen and the other made by Mr Cullen, came before me for an oral hearing on 7th December 2001. Neither Mr nor Mrs Cullen appeared on that day. I ordered that the applications be adjourned to be heard on notice, with appeal to follow if permission were granted. The reasons why I took that course appears from the transcript of the judgment which I gave on that day. That transcript was supplied to all the parties. That judgment should be read with this judgment. It sets out the unusual history of this litigation. The bankruptcy order in respect of Mrs Cullen was made as long ago as March 1987.
3. At paragraphs 16 to 24 of my judgment of 7 December 2001, I set out the circumstances (as they then appeared) in which the order of 5th July 2001 was made. At paragraph 26 I said this:

"It may be that in the light of the observations that I have made, Mr and Mrs Cullen and the trustee will find it possible to agree that paragraph 4 of the judge's order of 5 July can be set aside by consent. If they are able to agree that, then an application to set aside that part of the order by consent can be made on paper. If they are not able to agree that before the adjourned application is listed for hearing, then each of the parties will be at risk as to the further costs which will be incurred on that application."

4. It has not been possible for the parties to agree on the course which I then suggested. The trustee has appeared to resist the applications and, if permission be granted, to resist the appeals. In so doing he has incurred further costs which are set out in a schedule for the purpose of today's hearing and which fall just short of £2,000. This litigation may fairly be described as costs generated.
5. The position leading up to the hearing listed for 5th July 2001 may be described shortly. Mrs Cullen and her husband had listed for that day an appeal against an order made by District Judge Lethem in the Tunbridge Wells County Court refusing to set aside an order made earlier for the sale of their home. The District Judge had refused, also, to order that the transcripts of the hearing before him be made available to Mrs Cullen at public expense. At that stage there was no transcript of his judgment. Mr and Mrs Cullen were appealing to the High Court against the refusal to provide a transcript as well as against the substantive order for the sale of their home.
6. By early June Mrs Cullen that the time that would be allowed on 5th July for the hearing of the substantive appeal, which was three hours, was not going to be sufficient. She asserted that it was going to take a day to deal with the substantive appeal; and anyway it was not possible to deal with the substantive appeal until the question of transcripts had been dealt with. Without a transcript (at least) of the District Judge's judgment, it was difficult to see how a judge of the High Court could address the point. She rang the court office on 20th June. In response to that telephone call the Insolvency Appeals Clerk wrote to her expressing his understanding, from the discussion, that the matters listed did include the appeal against the refusal to provide a copy of the transcript at public expense. He went on:

"Having discussed the matter with you, it is now clear to me that the application filed on 15th May and the appeals received against the order refusing permission for you to obtain copies of the transcript received on 5th June 2001, are unnecessary as the appeal lodged on 11th May also covers that order. ...

I received a letter from Messrs Stephens & Sons solicitors [those are the solicitors for the trustee] dated 18th June in which they state the hearing of the appeals should be fixed for a whole day - not just three hours. In the circumstances I would suggest that you liaise with Stephens & Sons Solicitors in order to agree to an adjournment in order that the matter can [be] relisted for the whole day. You also stated that you would attend on the day of the hearing to seek the order for a copy of the transcript to be produced at public expense. I agree that this may be the best way to proceed on this issue."

7. Mrs Cullen wrote to Stephens & Sons on that day; no doubt after speaking to the court on the telephone. She sent the letter by fax. She said this:

"Regardless of what your opinion is of mine, one-and-a-half hours for each appeal is clearly insufficient and does not afford for whatever time you may require in the matter. Would you therefore supply me with your written consent to the relisting of the appeals for the purpose of allocating a reasonable and proper time for their hearings."

8. She repeated that in a second letter of the same date.
9. Stephens & Sons responded promptly, also on 20th June:

"We acknowledge safe receipt of your fax received this afternoon, and write to confirm of our consent to the hearing of 5th July being relisted for a full one day hearing."

10. In the light of that correspondence it is not at all surprising that what Mrs Cullen thought was going to happen on 5th July 2001 was that she would attend in order to pursue her appeal in relation to the refusal to provide transcripts but that the appeal against the substantive order - that is the order for sale - would be relisted, with the agreement of both parties, for a full day's hearing.
11. On 21 June 2001, she was supplied with an approved note of the District Judge's judgment by Stephens & Sons. They told her that it was no longer necessary for her to pursue an application for the transcript. That may well have been so; but that did not touch on the quite separate question whether three hours would be sufficient for the hearing of the substantive appeal on 5th July. Nor did it suggest that the agreement already obtained to relisting that appeal for a full day hearing could no longer be relied upon.
12. On 5th July Mrs Cullen appeared in front of the judge. So did the trustee. Mrs Cullen decided not to pursue her application in relation to the provision of transcripts at public expense; but, as she told the judge, she was not in a position to present an appeal against the substantive order because that was not what she had come to deal with. In any event, she explained that it had been agreed that the time allotted on 5 July 2001 would not be sufficient for that purpose. The judge took the view that she, or those who were assisting her, should have been ready to deal with the substantive appeal. That led to the costs order which he made.
13. What has not been explained is how it came about that Stephens & Sons instructed counsel to attend on 5th July 2001 in circumstances where they had consented to the hearing being relisted - without, apparently, making any attempt to discover either from the court or from Mrs Cullen whether the substantive appeal was to be heard on that day. There was no reason for Stephens & Sons to instruct counsel to attend on 5th July if the only matter that was going to be dealt with on that day was the appeal against the refusal to provide a transcript at public expense. However misconceived they may have thought that application was, it was not an application on which they had anything to contribute. The only reason for their attendance on 5th July was to deal with the substantive appeal; and that was a matter which they had agreed should be adjourned.
14. No doubt Stephens & Sons thought that they could and should appear because the matter was listed. But, when opposed by litigants in person in this type of case, it is not sensible for a firm of solicitors simply to assume that there has been a unilateral decision to depart from following an agreement which has been reached. Further, in circumstances where the litigant which they represent is a trustee in bankruptcy - with, one would hope, a proper concern for the costs which will have to be paid out of the bankrupt's estate - every effort should be made in order to discover what is really going to happen; not least in circumstances where there is plainly potential for confusion. In the present case it would have taken only a telephone call or a fax to the court, or to Mrs Cullen, in order to discover whether, notwithstanding the agreement made in correspondence on 20 June 2001, there really was going to be an effective hearing of the substantive appeal on 5th July. If that telephone call had been made it would have been plain that Mrs Cullen, at least, thought there had been an agreement to an adjournment and that the court was content to adjourn on that basis.
15. In those circumstances, which may not have been fully before the judge on 5th July, I am satisfied that Mrs Cullen has a real and sustainable sense of grievance that she should have come away from the hearing of 5th July with an order that she and her husband should pay costs of £2,000. In my view she should be given permission to appeal against that order of 5 July 2001, as to costs, and her appeal should be allowed. The order should be set aside. Mrs Cullen should not have to pay the costs wasted by the trustee's attendance on 5th July 2001. In so far as costs were incurred in the appeal to the High Court which were not wasted by the attendance on 5th July, those costs will remain to be dealt with in due course at costs in the appeal.
16. LADY JUSTICE HALE: I agree.
ORDER: Application granted; appeal that followed allowed; the trustee to pay costs of Mr and Mrs Cullen's attendance today, costs summarily assessed at £25.