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 HENRIQUES)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 20 June 2002

1. LORD JUSTICE JUDGE: This is an application by Mr Poole for permission to appeal against part of a decision of Henriques J who, on 25 January 2002, dismissed Mr Poole's application for permission to appeal out of time a decision of District Judge Goudie, dated 6 July 2001. He had refused Mr Poole's application for pre-action discovery in defamation proceedings which Mr Poole was intending to take against the Arcot Hall Golf Club.
2. Mr Poole has acted in person throughout. He has conducted himself and put his points across clearly and courteously, and I am grateful to him for the manner in which he has conducted his application. As I explained to him at the beginning of the application, if this was a matter of general sympathy, and permission to be given because of the courteous way in which a litigant has conducted himself, I would have no difficulty in knowing what I should do. But, I am forced to consider whether there is any realistic prospect of a successful appeal against the part of the order which Mr Poole wishes to have considered.
3. It is not necessary to my decision to explain the circumstances in which Mr Poole became involved in defamation proceedings. Following the order by the district judge, no appeal was brought by Mr Poole until 4 October. It is clear from the papers before me that from the very earliest stage after the order by Judge Goudie, Mr Poole was in correspondence with the solicitors then acting for the golf club. I take, for example, a letter dated 16 July in which Mr Poole writes to Watson Burton asserting that Judge Goudie had granted leave to appeal against the dismissal. He refers to the hope that in an attempt to save costs on both sides the proceedings and issues may be resolved "before I raise the appeal".
4. The decision which is now sought to be impugned was the order by Henriques J that Mr Poole should pay costs which were summarily assessed in the sum of £3,500. The main point advanced by Mr Poole in the papers which I have read, and again in the course of his argument before me, was in effect that he was involved in a permission to appeal application. There was, therefore, no need for the solicitors on the other side, or their clients, to become involved in any way. Carried to its logical conclusion, that submission would mean that it was unnecessary for those solicitors to incur any costs at all. Accordingly, the costs were unnecessarily incurred and he should not be obliged to pay them.
5. It is, however, instructive to read the order made by his Honour Judge Walton dated 16 October. The minute of order records that it was made of the court's own initiative without a hearing. It ordered that:

"1. This application is listed for permission to appeal and upon notice to the respondents, appeal itself is listed before a High Court Judge on 25 January 2002.

2. Any skeleton arguments submitted on behalf of the respondents shall be filed no later than 18 January."

6. The order recorded:

"If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it."

7. I have read the order out because it makes it clear that the respondents were given notice of the proposed applications by Mr Poole and that they were expected to be present, so that if granted, the full appeal would then be heard. In the course of my discussions with Mr Poole, I explained to him that the hearing before me today is a "PTA". He is here alone, but it would have been open to me, either on consideration of the papers earlier, or indeed today, to make an order that the papers should be served on the respondent's solicitors and that they should be invited to attend. If so, and the application were then adjourned so that the solicitors could attend, then it would be open for costs to follow the event of an unsuccessful application. One of the points I have been cautious about in this case was to ensure that Mr Poole's costs, already a matter of great concern to him, should be kept to a minimum.
8. Following that order, a further hearing before Grigson J took place on 6 December. At that stage the defendants applied for the order made by Judge Walton (wrongly dated 6 July when in fact he made it on 16 October) should be amended; that Mr Poole should file and serve a witness statement in support of his application for permission to apply for permission to appeal out of time, explaining the reasons for his delay; and the respondents, if they wished, to file and serve a witness statement in response. However, it was confirmed that if Mr Poole's application were granted, then the appeal would follow. The judge ordered that the costs of that hearing should be reserved to the hearing on 25 January.
9. On that day the defendant's statement of costs alleged that a total of £1,015.20 had been incurred and were due to them if an order for costs was made in their favour. I have read that document. If one extracted from it the fees of counsel and the VAT, we have reduced the amount by just under half of the amount then in issue.
10. The application came before Henriques J. The judge was asked, according to the note made of the hearing and put before me by Mr Poole as an accurate record of it, whether the other side was entitled to be present. The judge rejected that submission stating that they had a right to be present. Given the order that had been made, the judge was plainly right. The bulk of the hearing was concerned with the circumstances from which time had run from the making of the original order by Judge Goudie to 4 October when the notice of appeal was issued. Those matters were canvassed before the judge who gave a judgment in which he came to the conclusion that he was not prepared to grant permission to appeal. He regarded the delay as fatal. The reasons do not need to be ventilated.
11. With that, and I am guessing but I have no doubt this is how it happened, the respondents, to whose presence Mr Poole objected, asked for costs and a summary assessment was sought. According to the note, the judge asked whether Mr Poole had any reply. Mr Poole objected to the scale of costs and asked the judge to examine them for him. He did not, as he put it, make all the points to Henriques J that he made before me.
12. In addition to the defendant's statements of costs relating to the hearing on 6 December, there were two further items of costs. The second (the first of these two) was a statement of costs relating to the application for permission to appeal. It set out the various items, again including counsel's fees and VAT. The total sum was £1,583.77. In addition, a document was put before the judge described as "Statement of costs of dealing with applicant's application from 9 July to 11 January". The figures are there set out, totalling £3,597.70. In round figures, therefore, the judge was asked summarily to assess costs at £5,181. He looked through the documents and came to the conclusion that that figure was excessive. He concluded that the costs should be paid by Mr Poole and that the summary assessment should be £3,500.
13. Mr Poole is troubled and seeks permission to appeal on the basis (i) that the respondents had incurred costs unnecessarily by being at court when it was not appropriate for them to be there; (ii) that there was no appeal afoot between the date of the hearing before Judge Goudie and 4 October; and (iii) that, in any event, in summary, taking it from the passage in Lowndes v Secretary of State for the Home Department published on 5 April 2002, that the judge should have examined the costs to see if they appeared disproportionate to what was involved. If he had done that, he would have not been satisfied that the work was necessary and that the cost of the item was reasonable.
14. As I think Mr Poole acknowledges, the difficulty with the submission is that the decision about costs is a matter for the judge's discretion. He has to examine all the circumstances of every case. The judge was entitled to hold that the solicitors (or the respondents) "had a right to be present, given the orders that were made". That was a correct view of the matter.
15. As to the costs when there was no appeal afoot, I understand Mr Poole's concern, but there is ample evidence in the papers that the solicitors for the respondents were actively involved in dealing with the case as it progressed. Although there was no formal proceeding afoot, because he had not sought permission to appeal at that time, plainly the litigation was extant.
16. Finally, in relation to proportionality, of course I recognise the principle on which Mr Poole relies, but I can find here no basis on which the Court of Appeal on a full hearing, listening to argument on both sides, would conclude that the judge's assessment of the costs at £3,500 was inappropriate or disproportionate, or at a level that the court should interfere with it.
17. Having read the papers, having felt a degree of sympathy for Mr Poole in the predicament he found himself, having had that sense of sympathy reinforced at the hearing before me, the question I have to ask is whether there is any reasonable prospect of a successful appeal. I cannot find that there is. If I were to give Mr Poole permission to appeal, I have absolutely no doubt that the end result would be a long hearing before the Court of Appeal with counsel and solicitors appearing to object to the appeal. An unsuccessful appeal would then lead to a further and even more substantial order for costs against him.
18. In those circumstances, I have no discretion to order or grant permission to appeal and must reject the application that is before me.
Order: Application for permission to appeal refused.