England and Wales Court of Appeal (Civil Division) Decisions

Dooley v Parker & Anor [2002] EWCA Civ 96 (7th February, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
District Judge Ewing

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2002

Lord Justice Brooke :

1. This application for permission to appeal has been listed in the first place before a 3-judge court on a preliminary question of jurisdiction. The only question in issue on this appeal against an order of District Judge Ewing made in the Chester County Court on 31st May 2001 related to the appropriateness of his order that there should be no order for costs following the settlement of this action, which was assigned to the multi-track, on 30th May 2001, which was the day when the trial of the action was due to start before him, with a time estimate of two and a half days.
2. In the ordinary way appeal lies to this court from a final decision of a master or district judge in a claim allocated to the multi-track: see the Access to Justice Act 1999 (Destination of Appeals) Order paragraph 4(a). By paragraph 2(c) of that order a “final” decision means:

“the decision of a court which would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decides the issue before it.”

3. On the ordinary meaning of that paragraph the contents of a final decision will include not only the judge’s decision on the merits of the claim but also his decision as to where the liability for the costs of the action (or issue) would fall.
4. This is the interpretation of the order which has been adopted by both of the parties to this appeal, and also by Judge Hughes, sitting in the Wrexham County Court on 10th December 2001, to whom the appeal had been remitted after the Civil Appeal Office had intimated that the appeal against the costs order properly lay to the circuit judge and not to the Court of Appeal.
5. I have no hesitation in holding that the parties and the judge were right, and that this court does indeed have jurisdiction. The responsibility for the confusion is mine. In Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311 I was concerned, in a judgment with which Lord Woolf MR and Peter Gibson LJ agreed to give general guidance to courts and practitioners on the effect of different aspects of the new CPR appeals regime which had come into effect ten days earlier and was causing a good deal of uncertainty. Paragraphs 15-50 of this judgment were all irrelevant to the decision which the court in fact made that day, which related to the destination of an appeal lodged before the new regime came into force, and I see that I wisely prefaced my remarks in paragraph 14 by saying:

“For the many points of detail, courts and practitioners will of course have to consult the instruments which introduced these changes.”

I take this opportunity of repeating and re-emphasising that comment.

6. In paragraphs 16-19 I was concerned to identify the exceptions to the rule that under the new regime appeal usually lay to the next level in the judicial hierarchy. The main exception to that rule was the appeal against a final decision in a claim allocated to the multi-track under the three rules which I identified in paragraph 16 of my judgment. I went on to explain what a final decision meant, and in the critical second sentence of paragraph 17 I said:

“A final decision includes the assessment of damages or any other final decision where it is ‘made at the conclusion of part of a hearing or trial which has been split up into parts and would if made at the conclusion of that hearing or trial be a final decision’: article 1(3) of the Order of 2000; it does not include a decision only on costs.” (Emphasis added)

7. I ought to have made it much clearer that I was referring in this passage to a decision on an assessment of costs following such a trial, and what I thought was a convenient shorthand has understandably given rise to the difficulties that arose in this case. At the end of paragraph 17 I said that the language of article 1(3) appeared to preclude the possibility that parts of a final decision might be subjected to one avenue of appeal and other parts might have a different avenue of appeal, and at the end of paragraph 26 I made it clear that where costs were summarily assessed by a judge as part of a final decision in a multi-track claim, then the principles relating to appeals against final decisions in multi-track claims would be applied. For the avoidance of doubt in future cases, the second sentence of paragraph 17 of my judgment in Tanfern should read:

“it does not include a decision only on the detailed assessment of costs.”

8. I hope that if judges encounter any other passages in my judgment in Tanfern which give rise to difficulties of interpretation, or which are believed to be wrong, they will let me know, so that I can take an early opportunity of correcting or elucidating them as I did in my judgment in Foenander v Bond Lewis [2001] EWCA Civ 759 at [20] – [21], [2001] 2 All ER 1019, in relation to a mistake I made in Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17, 30 in relation to a quite different matter relating to the destination of appeals.
9. For these reasons I am satisfied that this court has jurisdiction to hear this application.

Lord Justice Sedley:

10. I agree.

Lady Justice Arden:

11. I also agree.