England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(JACOB J)

		Royal Courts of Justice Strand London WC2 18th April 2002

18th April 2002
1. LORD JUSTICE CHADWICK: On 14th December 2001 the applicants, Mr Alan Russell and Mrs Pamela Russell, made a renewed application to this court for permission to appeal from an order made by Jacob J on 16th July 2001 in proceedings which they had brought against Mr Wyndham Sheen. By his order of 16th July 2001 Jacob J had dismissed their appeal against an order made on 29th March 2001 by His Honour Judge Reynolds in the Clerkenwell County Court. It follows that the application for permission to appeal could not succeed unless this court was satisfied that the appeal would raise some important point of principle or practice, or that there was some other reason why a second appeal should be heard by this court - see CPR 52.13.
2. The renewed application came before Sedley LJ, who had, on 20th November 2001, refused permission to appeal on paper on the ground that he was not then satisfied that any of the proposed grounds of appeal raised an important point of principle or practice, or otherwise demonstrated a compelling reason for allowing a second appeal.
3. It is pertinent to note what he said:

"The short answer to all but the first of the questions posed in the skeleton argument is that they all depend on the facts. Here, for reasons spelt out by Jacob J, Judge Reynolds was entitled both to reach the fact findings he did and to act upon them as he did. They raise no distinct questions of law."

4. Nevertheless, when the application was renewed before him in open court on 14th December 2001, he was persuaded that the question whether or not the proposed appeal raised an important question of principle was of some difficulty; and that, in the circumstances, the proper course was to adjourn the application for permission to appeal to a full court, with what he described as a "chancery component", to be heard on notice with appeal to follow if permission were given. He said this, in a note for the court file:

"The reason is that deciding whether an application for permission to appeal raises the kind of issue that has got to be raised for a second appeal to get off the ground is itself, I think, quite difficult in this situation. The court, for example, might take the view that although if it were a first appeal you would have a reasonable prospect of success, it does not raise an important issue in principle; but you may persuade them that it does, and if you do you are in orbit."

5. He indicated that, if the matter were pursued before a full court, then costs would escalate. That was a matter to be taken into account by the applicants. He suggested a time estimate of one and a half days for the hearing of the adjourned application and the appeal, (if permission were granted).
6. It should be kept in mind that when a judge of this court makes an order for an application for permission to appeal to be listed on notice, with appeal to follow if permission is granted, he usually does so on the basis that the court hearing the application for permission to appeal will thereby become fully seized of the arguments on both sides in relation to the appeal itself, so that it may be expected that little or no further argument will be required in relation to the appeal itself if the court decides to grant the permission application.
7. The adjourned application with appeal to follow was listed for hearing on 18th and 19th April 2002. Notice of the hearing was given to the proposed respondent, as was required by the order which Sedley LJ had made on 14th December 2001. On 11th April 2002 the solicitors for the applicants wrote to the Court of Appeal Office indicating, as they said, that they wished to withdraw the appeal. As no permission to appeal had been granted that was, perhaps, somewhat premature. What they must be taken to have intended to say was that they did not wish to pursue the application for permission.
8. That letter was received in the Civil Appeals Office on Monday 15th April. A copy of it had been sent by post to the respondent's solicitors and was received by them on Monday 15th April. For reasons which I find difficult to understand, it was not thought sensible to send the letter and the copy by facsimile on 11th April, a Thursday, so that the contents could have been digested both by the court and by the respondents before the weekend.
9. Be that as it may. The respondent's solicitors reacted on Monday 15th April by faxing a letter to the Civil Appeals Office. They indicated that they would ask for an order for payment of the costs which had been incurred in preparing for the hearing which had been listed for 18th April, and which, in the light of the applicant's stated intention to withdraw, would not proceed. They put those costs at a little under £6,500. They pointed out that they had given notice to the applicants by letter dated 25th February 2002 that they would be seeking their costs of attending on an application made on notice in the event that the application for permission was unsuccessful.
10. Those letters were put before me for directions. On 16th April I gave the following directions which were sent to both firms of solicitors:

"It is for the applicants to decide whether they wish to pursue their application for permission to appeal. If they choose to withdraw their application, the court will permit them to do so without hearing the prospective respondents. If the respondents want an order for costs thrown away in preparation for the application on notice, with appeal to follow if granted, they will have to apply to the court. The respondent's application, if he wishes to pursue it, should be listed for hearing before a single Lord Justice on notice on Thursday 18th April."

11. In response to those directions the respondent's solicitors indicated by a letter, faxed to the Civil Appeals Office and to the applicants on 17th April at 10.25 in the morning, that they did wish to seek an order for costs thrown away. Accordingly, that application was listed for hearing today, 18th April, as I had directed.
12. On receipt of a copy of that letter from the respondent's solicitor, the applicants' solicitors had a change of mind. By letter faxed to the Civil Appeals Office yesterday afternoon they asked, as a matter of urgency, that the appeal be relisted. Once again that was, perhaps, premature, because permission to appeal has not yet been granted. Nevertheless, it is clear enough that the applicants do now want to pursue the application for permission to appeal, and to pursue the appeal if permission is granted.
13. It is also clear, first, that that cannot be done today. On the basis of the letter of 11th April 2002 from the applicants' solicitors, the court has rescheduled its list for today and there is another matter to be heard. Nor could the matter have been heard tomorrow within a time estimate of one and a half days. In any event counsel for the applicants is now otherwise committed tomorrow.
14. Second, it is clear that if the application for permission to appeal is to be pursued, it is unnecessary to hear the respondent's application for costs of that application thrown away. The respondent's costs of the application for permission to appeal will be dealt with when that application is heard.
15. The sensible course, in those circumstances, would have been for the applicants to agree to pay the costs incurred by the respondent in preparing for an application today in relation to the costs of the application for permission. That is to say, the costs incurred between 15th April and 17th April while it was anticipated that the application for permission to appeal would not be pursued, but that an application for the costs thrown away by that application for permission would be pursued. If that had been proposed, then the respondents ought to have accepted that proposal and ought to have accepted that the application for permission to appeal should be relisted. Unfortunately that did not happen. Neither party proposed that course. The respondent's solicitors contended that it was too late for the applicants to have a change of mind. Inevitably in those circumstances, that this morning's application would have to proceed.
16. In my view, the right order to make in those circumstances is, first, to direct that the application for permission to appeal, with appeal to follow if application granted, be relisted for hearing before a court of two Lord Justices with a revised time estimate of one day - that being, in my view, sufficient to deal with the issues actually raised on that application and the appeal. Second, for that matter to be heard within the next two or three weeks if a day can be found for the purpose. Counsels' clerks are to make contact with the listing office forthwith for the purpose of finding a day when the matter can be heard.
17. The price of the applicants' change of mind should be, in my view, the costs thrown away by the alteration of the position between 15th April, when their solicitors' letter was received, and 17th April, when the change of mind was indicated. The costs of actually attending today will be costs in the application. They could have been avoided if either party had proposed and adopted what have described as the sensible course. The respondents are to have their costs of preparation during the three days that I have mentioned, 15th, 16th and 17th April, in any event.
ORDER: Application to be relisted before two Lord Justices. Costs of attendance on 18th April 2002 to be costs in the application. Respondent to have costs for preparation of the application, limited to 15/16/17 April 2002.