England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE VINCENT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th May 2009

Lord Justice Ward:

1. This is a renewed application for permission to appeal the order made by HHJ Vincent sitting in the Truro County Court on 29 January 2009, permission having been refused on paper by Wall LJ.
2. Let me spell out the background first. At the ripe old age of 98 and 97, Mr and Mrs Bertie Woods divorced. I wish them long life and a happy future. They had claims for ancillary relief against each other and those claims came before District Judge Mitchell, also sitting in the Truro County Court. In the ensuing ancillary relief proceedings they were eventually able to agree a clean break, but the disputed issue which the district judge had to decide was one joined between Mrs Woods' daughter, Pauline Rowe, and Pauline's former husband, Mr William Baker, the applicant before us today. Each of them intervened in the ancillary relief proceedings to claim that he or she was the sole beneficial owner of the matrimonial home in which Mr and Mrs Woods had lived and in which everyone agreed Mr Woods would continue to live. The district judge held that the property was owned beneficially by Mrs Rowe and not by Mr Baker.
3. There then followed a discussion about the effect of the changed rules on the costs orders that should follow. One aspect of this which comes as a surprise to me, and which we have not investigated in detail, is that there has been some change effected to the Legal Services Regulations of 2000, the effect of which is that Mr Baker, although legally aided for the purpose of his intervention and his claim to a beneficial interest in the property, nonetheless lost the protection that a legal aid litigant used, in my time, to enjoy, namely that a costs order would not be made against him ordinarily, or certainly not to be enforced without leave, the so-called the football pools orders: that seems no longer to apply. The second change to the rules that is particularly relevant is the change to the Family Proceeding Rules, and the new rule 2.71 of the Family Proceedings costs rules provides:

"(1) CPR rule 44.3(1) to (5) shall not apply to ancillary relief proceedings.

(2) CPR rule 44.3(6) to (9) apply to an order made under this rule as they apply to an order made under CPR rule 44.3.

(3) In this rule "costs" has the same meaning as in CPR rule 43.2(1)(a) and includes the costs payable by a client to his solicitor.

(4)(a) The general rule in ancillary relief proceedings is that the court will not make an order requiring one party to pay the costs of another party; but

(b) the court may make such an order at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them)."

4. There was brief discussion about the effect of that rule and the district judge had little difficulty in concluding -- without much opposition from counsel who then represented Mr Baker – that, as he said, the definition of ancillary relief tends to be limited to the sort of basic relief that would normally be granted in matrimonial proceedings, and this is something different from that. And so he ordered that Mr Baker should pay the costs of Mrs Rowe. The oddity, it may be, that if, as we understand, Mrs Rowe was herself legally aided, she recovered the disputed property, the Legal Services Commission would therefore have a charge on that property and would be able in due time to recoup from Mrs Rowe the costs they had incurred on her behalf. She now has the benefit of a costs order made against a legally aided party, Mr Baker; the Legal Services Commission will of course pay his costs, but someone might be able to recover the money from Mr Baker. I say "might be able to recover the money" from him because his actual position, we are told, is that he has no assets apart from a current account with approximately £900 in it; he is in receipt of guaranteed state pension credit. So it is all, in a sense, very sad.
5. Mr Baker appealed against the costs order made against him and that appeal came before HHJ Vincent. Apparently, we are told, no permission had been sought from the district judge to appeal the order, but of course permission had to be sought from HHJ Vincent. He said this in paragraph 7 of his judgment:

"He needs permission to appeal, but it is one of those cases where sensibly one has to concertina the issues of permission and the substantive appeal. I think, in fact, having looked back on the argument as it has developed today, it is one where had I considered the issue of permission as a discrete one, I would have granted permission to appeal, because it seems to me the issue of the applicability of the Family Proceedings Rules to such a situation is fairly novel and worthy of a look to see within an appellant forum."

6. He then reviewed the merits of the case. He construed the Family Proceedings Costs Rule purposively, saying its purpose is to avoid ancillary relief orders between spouses or ex-spouses having their effect defeated by huge amounts of costs. He accordingly concluded that this was different litigation between two contending parties; it would have justified separate proceedings in multi-track under the Trust of Land Act, and accordingly he upheld the finding of the judge on the merits, but his judgment concluded:

"13. At its highest, this would be a review of the decision of the district judge. It is quite impossible fro me to say that the district judge was plainly wrong. In fact, I think he was right in his interpretation of the rules and the exercise of his discretion. I therefore refuse the application for permission and dismiss the appeal."

And thus the order, which is the subject of this application, is an order drawn exactly in terms of paragraph 13 of that judgment:

"IT IS ORDERED THAT

"1. The application for permission to appeal is refused.

2. The appeal is dismissed.

3. Mr Baker shall pay Mrs Rowe's costs of the appeal on the standard basis subject to detailed assessment.

4. Detailed public funding of the Appellant's costs."

7. Wall LJ paid tribute to "the erudition on display" in the skeleton argument he considered -- one prepared by Mr Andrew Worsley who now appears for the applicant. I wish to pay my tribute to Mr Worsley not only for his erudition but for the careful, sensible and charming way in which he has argued this application. It was argued under a difficulty because I pointed out that on the face of an order refusing permission to appeal -- that order being made by an appellate judge, HHJ Vincent, on an appeal from the first instance judge, District Judge Mitchell -- this court has no jurisdiction to entertain a second appeal because of the effect of Section 54(4) of the Access to Justice Act 1999 and at paragraph 4.8 of the Practice Direction (see the notes in the White Book under CPR 52.3.8). Mr Worsley accepts the inevitability of that general rule that, if the appellate court refuses permission to appeal to it, there is no further appeal. But, he submits, this case is different because the application for permission was heard by the circuit judge for the first time, the district judge never having been asked to grant it or to refute it. That, in my judgment, sadly makes no difference. The order is stark. Paragraph 1 records that the application for permission was refused.
8. Mr Worsley's next point is that there seems to be an inherent contradiction between paragraph 7 of the County Court judge's judgment and paragraph 13 thereof. He relies on paragraph 7 where the judge says "I would have granted permission to appeal"; but the fact is that he did not grant permission to appeal; he went on to look at the whole case before him and, having regard to the perceived lack of merit in an appeal, he came to the conclusion in 13 that the district judge was right in his interpretation both of the rules and of the exercise of his discretion and his conclusion is clear: "I therefore refuse the application for permission." The fact that he went on to say -- and it was otiose to say -- "and I dismiss the appeal" does not alter, in my judgment, the first conclusion that permission should be refused, and the order says so. The appeal is always brought against an order; it has not been corrected. I doubt whether it could properly be corrected under the slip rule. The circuit judge was not asked to deal with an apparent contradiction in his order, but, as I read his judgment, he is doing no more than we frequently do in this court: we consider the case for permission; we look at the merits in arriving at a view about permission; and we refuse permission often where the point may be interesting or, in the circuit judge's words, "novel", but where there is a perceived lack of ultimate merit.
9. Much as I applaud Mr Worsley's labours, and interesting though I agree the point is that an intervener may claim the benefit of the new Family Proceedings Costs Rules if he stays in the dispute between the husband and wife and has a judgment granted for him or against him in those proceedings; and whereas his position seems to be different if the husband and wife drop out of the dispute and leave the warring parties to be the two interveners as here, all of that is interesting; but this court in my judgment has no jurisdiction to entertain that appeal. For my part I would therefore -- and I choose my words carefully -- dismiss the application for permission to appeal.

Lord Justice Rix:

10. I agree. This court, for the reasons given by my Lord, Ward LJ, has no jurisdiction to entertain this application for further permission to appeal and therefore that application must be refused.

Order: Application refused