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 HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC
(sitting as a deputy judge of the High Court))

		Royal Courts of Justice Strand London, WC2
		17th August 2005

1. LORD JUSTICE LLOYD: Dr Record seeks permission to appeal against the order made for costs by His Honour Judge Langan QC sitting as a judge of the High Court in Newcastle on 23rd September 2004. He had given a written judgment in August following a five-day trial of issues between Dr Record and Mr Jobson, Mr Jobson being the claimant.
2. On 23rd September a hearing took place in order to determine, first of all, the form of the order and, secondly, costs and, I suppose, any other consequential matters that might have arisen.
3. The order that the judge made as regards costs required Dr Record to pay five-eighths, 62.5%, of Mr Jobson's costs, to be the subject of a detailed assessment, and to pay £25,000 on account. I am told that the payment on account has been made, but obviously if the order for costs were changed as a result of the proposed appeal that would have to be revisited.
4. Since the order was made on 23rd September, the time for appealing expired on or about 8th October. The appeal notice was in fact ultimately stamped on 15th July 2005, having reached the Civil Appeals Office at the end of June. It is therefore considerably out of time, and the first question is whether time should be extended for Dr Record's proposed appeal.
5. The history in this respect is a little puzzling. Dr Record says that he sent an appellant's notice to the Court Office, having spoken to the Court Office and ascertained that the fee payable was £100 (as it then was). He received an unsealed copy of the court's order from the claimant's solicitors on 20th October and he sent an appellant's notice with the £100 fee cheque on that date. He sent a skeleton argument on 10th November. He applied for a transcript of the judgment in respect of costs which had been delivered orally on 1st November. Apparently that took an extraordinarily long time to arrive, and he only received it in June. At that stage, in the light of the transcript, he revised his grounds of appeal appearing in section 8 of the appellant's notice and he put together a bundle of documents, including the revised appellant's notice, and sent them to the Civil Appeals Office on 26th June. He says:

"... in view of the seriousness of the matter I would be most grateful if permission for the appeal could now be granted."

6. On 4th July the Court Office acknowledged his papers, which had been received on 29th June, and they said that they had no record of any correspondence being received, it says "by you" but it must mean "from you", in October or November. So they pointed out that he was beyond the 14-day time limit and would need to apply for an extension of time and give reasons why he could not apply in time. They also pointed out that the fee was by then £200 and they asked for a cheque for that amount.
7. On 6th July Dr Record responded, saying that he was mystified about the whereabouts of what he had sent in the autumn. He says:

"I did however think it was odd that there was no acknowledgement."

He had ascertained, no doubt in the light of the letter, that the £100 cheque which he had sent had not been cashed. So he made some alterations to the documents, including deleting an application for a stay of the interim payment order, and in that form the appellant's notice was stamped and treated as filed on 15th July.

8. Dr Record has appeared, certainly at trial and I dare say for most of the duration of the action, in person. It is not the first time that he and Mr Jobson have been in litigation. It is not the first time that the matter has come to the Court of Appeal. But on the previous occasion (which is referred to by the judge in his substantive judgment), first of all, Dr Record was represented and, secondly, the appellant was Mr Jobson. So that did not give Dr Record any personal direct experience of how things go if you are seeking to appeal.
9. Dr Record says that he did not apply to the judge for permission because he was not aware of the need to apply at that stage. He was not then aware of the 14-day time limit, but he became aware of it soon after and he tried to send the first documents as soon as he received a copy of the order.
10. I think it is fair to say that if the delay had only been to the time in October and November when he tried to send the documents originally, there would have been no doubt that an extension of time would have been granted. It is somewhat more difficult to justify an extension of time through until June and July. But bearing in mind Dr Record's position as a litigant in person and that the reason that he delayed and did not ask any questions, so to speak, as to the lack of any acknowledgement was that on the face of matters the documentation was not yet complete and he was waiting to be able to complete it, bearing in mind also, as he tells me, that when he sent documents to the court he copied them at the time to the claimant's solicitors as well, I think it would be appropriate to stretch a point and to permit this application to be made notwithstanding that it is out of time. So I will extend time, highly exceptionally, to 15th July for applying for permission to appeal.
11. The more important question is whether there is any real prospect that Dr Record's appeal would succeed. The appeal is based really on one point, and of course it has to be considered in the context of the discretion which the rules give to the court in deciding on questions of costs. Rule 44.3(1) of the Civil Procedure Rules starts with the general proposition that the court has a discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Subrule (2) continues that:

"If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order."

That is amplified by subrules (4) and (5), and I will refer in particular to (4):

"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; ..."

12. Other matters within the scope of Rule 44.3 were relevant before the judge, but those are the points that are particularly relevant today.
13. The judge decided to order Dr Record to pay five-eighths of Mr Jobson's costs on the basis that on balance he considered that Mr Jobson was the successful party, but he recognised that Dr Record had succeeded on some issues on which, if they had stood alone, he would not only not have had to pay Mr Jobson's costs, but would have recovered his own from Mr Jobson.
14. Dr Record does not and cannot challenge the basis of that approach in itself, nor the assessment of the balance of success. There were three major issues, as the judge saw it, of which Mr Jobson won one point outright and won a second, albeit on an alternative rather than on his primary basis. On the third Dr Record won, subject to a very minor qualification. There were four minor issues. The judge said that Mr Jobson had won three of those, but not the fourth which concerned water supply.
15. As I say, Dr Record seeks to challenge the judge's order on one specific basis to do with Mr Jobson's conduct and the presentation of his case. This is a point that he took before the judge. He said that Mr Jobson should not be entitled to the costs that he would otherwise be entitled to, and indeed goes further to say that Mr Jobson should pay his own, Dr Record's, costs, because Mr Jobson relied on fabricated evidence.
16. This is a point that had featured at the trial. Mr Jobson claimed, among other things, special damages for the unlawful use of a roadway by Dr Record which he said had caused damage to the surface of the roadway. In support of that he produced on disclosure two invoices for materials said to have been used in making good the surface of the roadway. In paragraph 21 of the judge's judgment on the trial he says that one of these two invoices was discovered a few days before the trial to have been fabricated by Mr Jobson's daughter:

"I do not believe that Mr Jobson was himself a party to the fabrication, but, rather, that he acted with urgency to disclose what was (in the context of legal proceedings) an extremely grave act of dishonesty as soon as he found out what had happened."

17. Correspondingly at paragraph 15 of his judgment on costs, the judge says this:

"Next, Dr Record says that Mr Jobson relied on false evidence. True it is that Mr Jobson was at one stage relying on a particular receipt and it was discovered that that receipt had been forged by his daughter. There is absolutely no reason to suppose that Mr Jobson had anything to do with that piece of very serious dishonesty, nor is there any reason to suppose that Mr Jobson delayed in drawing the dishonesty to the attention both of those advising him [and] Dr Record as soon as he discovered it."

18. On that ground the judge declined to take that matter of conduct on the part of Mr Jobson into account in altering or qualifying the order for costs that he was otherwise minded to make.
19. Dr Record says that these two passages acquit Mr Jobson quite wrongly of involvement in the fraud. The way he puts it is this. The purported invoice was attributed to a firm called KW Purvis & Son of Alnwick in Northumberland. It was invoiced apparently to Michael Murray at The Gun Room, Morpeth, and it was for the supply of a load of 19½ tonnes of hoggin for a total amount of £192.75 and it was marked "PD" (for paid) in manuscript.
20. Dr Record points out that the invoice was disclosed with those initials on it on 5th September 2003 and that Mr Jobson confirmed that the initialling was by himself. Mr Jobson said apparently in cross-examination not only that his daughter was responsible for the fabrication, but that it was she who had telephoned a Mrs Scott of KW Purvis in 2003 to ask for a copy of the invoice which they were unable to produce. That account would distance Mr Jobson himself from what happened.
21. Dr Record was highly suspicious of this invoice when it was disclosed and he contacted Mr David Purvis of that firm. He showed the purported invoice to Mr Purvis, who checked the position with Mrs Scott. They came to the conclusion that it was not a genuine invoice and Mr Purvis produced a witness statement which explained why they were satisfied that it was fabricated. Paragraph 6 of that witness statement says this:

"Mrs Scott told me that Mr Jobson of High Weldon had phoned up in the summer of 2003 requesting a copy of an invoice for hoggin which he said he required for tax purposes."

That therefore is inconsistent with what Dr Record tells me that Mr Jobson said in cross-examination.

22. That witness statement dated 26th March, which I think was the Thursday before the Monday on which the trial was due to start, was sent to the court on the Monday morning. It was no doubt sent to the claimant's representatives beforehand. Dr Record tells me that, not surprisingly in the light of that, Mr Jobson withdrew his reliance on that invoice. That is consistent at least with what the judge says about drawing immediate attention to the true position once he had found out what had happened.
23. But what Dr Record says is the facts that (a) Mr Jobson had put his own initials on the invoice and (b) he had had the telephone conversation with Mrs Scott shows that he was in fact implicated far earlier than he admitted to. On that basis Dr Record would seek to argue that the judge was wrong to acquit Mr Jobson of participation in the fabrication of the document, and accordingly wrong not to take that into account on the question of costs.
24. The difficulty with that submission is that it does not depend to any significant extent on material coming to Dr Record's knowledge after the trial and after the judgment. Dr Record did cross-examine Mr Jobson on the point, and indeed seeks to rely on a number of the things that Mr Jobson said in the course of his cross-examination. He tells me that in the course of that part of the trial the judge made it clear that he regarded Mr Jobson as telling the truth when he said that he had not known about it until a day or two ago and that, to use I think Dr Record's own words, he felt that the carpet was being pulled away from under him and he therefore did not, as he might have done or as counsel on his behalf might have done, pursue the matter by way of cross-examination on Mr Purvis' witness statement. It would be fair to say that he could not have called Mr Purvis since the question was by then only a question of credibility, but he could have cross-examined Mr Jobson when he said that his daughter had telephoned Mrs Scott by showing him the witness saying, "No, no, here is Mr Purvis who says that it was you who telephoned Mrs Scott." But he did not. That is no doubt attributable in part to the fact that he was acting in person and did not, for whatever reason, do everything that a professional advocate might have done on his behalf.
25. The fact remains that this is a point which was available to Dr Record at the time of the trial and which, if he was going to put it to the court, he should have put to the court then on the basis of the evidence that he then had. There are circumstances, although they are very limited, in which matters which come to the attention of a party after a trial has been concluded may be admitted in evidence on an appeal. Plainly this is not within those circumstances because Dr Record had the essence of the evidence already. Given that what happened was that he did not take a point in cross-examination and in submission that he could have done, it seems to me quite beyond any possibility of argument that he could succeed in challenging the judge's ruling on costs by reference to the point that he now seeks to take.
26. I see no prospect at all of success on the appeal and accordingly, although I would as I say extend the time for the appeal, I dismiss the application for permission.

ORDER: Application for an extension of time in which to file the appellant's notice granted; application for permission to appeal refused.

(Order not part of approved judgment) ______________________________