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 QUEEN'S BENCH DIVISION
(Mr Justice Klevan)

		Royal Courts of Justice Strand London WC2 Wednesday, 26th June 2002

Wednesday 26th June 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal a decision of the late Klevan J given on 9th October 1999 on an issue in costs. The application for permission to appeal was made on 13th February 2002, which is also over two years out of time, and an extension of time is also sought.
2. The applicant, Mr John Pepin, commenced a claim for defamation against the Chief Constable of Surrey and one of the constables in the Force, Constable Watts. The tort was allegedly committed by Mr Watts, and the Chief Constable, it is claimed, was vicariously liable for the action of the constable.
3. On 14th May 1999 the applicant was ordered by Master Rose to provide further particulars of his claim. An application for further particulars of the defence was adjourned pending the information being provided. The applicant was ordered to pay the costs of that hearing.
4. The applicant appealed against that decision. The appeal was heard by Sullivan J, who dismissed the appeal and ordered the applicant to pay the defendant's costs of the appeal. These were summarily assessed in the sum of £750.
5. An application for permission to appeal against that order was made to Klevan J in October 1999. I do not know why it was not made to Sullivan J, but there is no complaint about the application being made to another judge. The application was refused on the ground that the applicant had no real prospect of success and the appeal did not raise any important point of principle or practice. The applicant was ordered to pay the costs of that hearing, which were also summarily assessed. It is that order which is the subject of the present application.
6. For completeness, it appears from the papers that the defamation claim was struck out by Master Eyre on 2nd December. The appeal against the striking out was dismissed by His Honour Judge Crawford QC on 16th March 2000.
7. The applicant applied to the Court of Appeal for permission to appeal against the decisions of Sullivan J and Judge Crawford. Mantell LJ heard the application on 3rd March 2000 and dismissed all but one of the grounds. However, he granted the applicant permission to appeal the decision of Sullivan J on the costs of the hearing before him. That appeal was dismissed following an oral hearing in this court (Waller and Johnathan Parker LJJ) on 4th October 2000. Also dismissed was a renewed application by the applicant for permission to appeal against the striking out.
8. The present application on paper is for permission to appeal, first, against the decision of Sullivan J on the costs of the appeal before him and, second, the decision of Klevan J. The letter refers to costs of £750. In fact costs were awarded in the sum of £575. The applicant was told that his appeal against the decision of Sullivan J had already been dealt with by the Court of Appeal and could only be reopened on the basis recently identified in this court in Taylor v Lawrence. The application to reopen the appeal against the decision of Sullivan J has also been dismissed, and Taylor v Lawrence does not arise upon the present application.
9. At the hearing before Klevan J, which is the subject of the present application, there was, it is clear, discussion as to the costs order. As I have already indicated, the judge reduced the claim from the sum of £750 claimed on behalf of the defendants to the sum of £525. Klevan J refused permission to appeal to this court. Hence the present application.
10. The application for costs before the judge is included with the bundle of documents which the applicant has helpfully prepared. It is headed:

"Pepin v Watts and The Chief Constable of Surrey

Defendants Statement of Costs for the hearing on 8 October 1999."

11. It is dated 7th October 1999 and is signed by Mr N D Carey, who describes himself as "Force Solicitor Surrey Police". The solicitor certified part of the application:

"The costs estimated above do not exceed the costs which the defendants are liable to pay in respect of the work which this estimate covers."

12. The applicant's submission is that the document constitutes a false declaration. There is no evidence of any obligation on Mr Watts to pay any costs. The costs were not incurred by him, but by the Force Solicitor. Moreover, it is submitted that a summary assessment ought not to have been made. The effect of a summary assessment is that the costs are payable within 14 days. The applicant submits that the effect of this was to "hammer" him out of the action, and it is unfair if litigants in person are made subject, as the applicant was, to a summary costs order in a substantial sum.
13. The applicant has appeared in person and has addressed the court orally. He says that the question of summary costs orders is not a trivial matter and deserves attention, though he accepts that the rules do provide for the 14-day period.
14. What was not brought up before Klevan J, it is submitted, is the fact that Mr Watts was not personally liable for the costs. In the absence of any evidence about the arrangement between him and the Force Solicitor, there could be no assumption that he was liable for costs in the sum or in the manner in which they were claimed in the statement placed before the judge. The costs judge apparently has indicated that had he apportioned costs, he would have done so on a 50/50 basis as between the first defendant, Watts, and the Chief Constable. There should not have been a summary order, the applicant submits, because the judge was not made aware that Mr Watts was not personally liable to pay the costs. Had the judge been made aware, this would have become the subject of detailed assessment and the matter would have been further investigated.
15. The applicant submits that Constable Watts should have been represented by the Police Federation. He raises the question of a window cleaner employed by the Force: if he was a party to an action as a result of an incident whilst cleaning his windows, or something which was nothing to do with his employment, could it be assumed that there was an arrangement which entitled the Force Solicitor to claim costs? The point was put to the applicant that he does not dispute that Constable Watts could have been represented by the Force Solicitor. What he submits is that there ought to have been before the court a statement of the arrangement between Constable Watts and the Force Solicitor; and only if the judge was satisfied that the arrangement was a proper one should the summary costs order have been made. The applicant has referred me to the decision in the Divisional Court in Hazlett v Sefton Metropolitan Borough Council 2nd December 1999, reported in the New Law Journal practitioner section.
16. As to the delay, the applicant submits that the full picture has only recently emerged, so that he should be granted an extension of time. It must be pointed out that the facts were before Klevan J, the document at page 28 of the bundle was before him, and it is clear that the question of costs was argued before the judge.
17. In my judgment there is no arguable ground of appeal in this case. The judge was entitled to make a summary assessment of costs in the circumstances. He was entitled to do so in the sum of £575. In my judgment there is nothing misleading about the document submitted to him. It is headed "Defendants Statement of Costs", and it cannot be doubted that the costs have been incurred by the Force Solicitor. In my judgment it is not a case where the order could only be made upon evidence being given of precisely what arrangement was made between Constable Watts and the Force Solicitor.
18. I see no real possibility of any irregularity having occurred in this case. I see no difficulty about the constable being represented by the Force Solicitor in a claim such as this and I have no difficulty in assuming that the constable chose, as he was entitled to choose, to be represented by the Force Solicitor and that the Force Solicitor should act, incur and, if successful on a costs application, recover the costs. That is not to say that Mr Watts is entitled to a windfall. If there were evidence that the money ordered to be paid had not gone to the Force Solicitor but had been a form of enrichment of the police constable, then issues would plainly arise between the officer and the Police Force, and it may be that public issues would also arise.
19. However, in the circumstances of this case, I see no obligation upon the Force Solicitor when making his application before Klevan J to do more than he did; I have no reason to believe that there is anything irregular about the arrangement; and in my judgment the judge was entitled to make the order which he did on the information before him. He has not been misled in a way which provides an arguable ground of appeal. Moreover, I would not have granted the extension of time in the circumstances.
20. For the reasons I have given, on its merits this application is in any event refused.
Order: Application refused.