England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
HH JUDGE A SEYS LLEWELLYN QC
BG701262

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/07/2010

LORD JUSTICE CARNWATH :

1. This is a renewed application for permission to appeal against the decision of HH Judge Price QC on appeal from the decision of District Judge Carson following a detailed assessment hearing concluded on 7 July 2004. Patten LJ refused permission on the papers on the grounds, this being a second appeal, that there was no important issue of principle or practice or other compelling reason for this court to grant permission. Mr Hutchings appeared before me in person. I reserved the decision, to enable the court office to make enquiries of the Cardiff County Court as to the reasons for the delay between the original hearing and the handing down of Judge Price's decision on 2 November 2009.
2. I have now received a reply of the County Court dated 16 June 2010 which states as follows:-

"Our records show on 6 December 2005 both parties were sent a copy of the final judgment from His Honour Judge Price QC. The court became aware in September 2009 that this judgment had not been officially handed down, although parties had received copies 4 years previous. Mr Hutchings wrote to the court requesting this judgment be formally handed down, and it was done by His Honour Judge Seys Llewellyn on 2 November 2009. His Honour Judge Price retired in May 2008 so our Designated Civil Judge dealt with the matter. The court was unaware that the formal handing down of the judgment had not taken place"

I comment only that, although the delay before formal handing down was most regrettable, it appears that the reasons for the original decision were known to Mr Hutchings in 2005. In any event, the delay as such does not materially affect the issues in this application for permission to appeal.

3. The background of this protracted litigation is explained in Judge Price's judgment. It started as long ago as February 1997 as a boundary dispute, which developed into proceedings against Mr Hutchings for damages for trespass. Following the final order in June 2000 the Judge made an order for costs against Mr Hutchings on the standard basis. Although there were appeals against that order, the only issue outstanding by the time of the Judge's decision related to the assessment of costs.
4. Since this is an application for a second appeal, it is unnecessary for me to consider the detail of the judgment below or the grounds, except to the extent that they raise possible points of general interest or other compelling reasons. I note that DJ Carson's decision had resulted in what Judge Price described as a "massive reduction" in the claimed costs, which Judge Price held had not been sufficiently taken into account in the order relating to costs of the assessment. The net result of Judge Price's decision was that, taking account of amounts already paid on account, Mr Hutchings was ordered to pay £18.73.
5. The grounds now put forward for the proposed appeal can be summarised:-

i) The Judge wrongly concluded that certain evidence was not shown to the District Judge;

ii) The Order failed to deal with the costs of the successful appeal of 7 July 2004;

iii) The Judge failed to deal with the submissions about the allocation of the case;

iv) The Judge failed to deal adequately with the issue of VAT.

Points i, ii and iv are points of detail relating to the facts of this case, and cannot be said to raise any issue of general significance or otherwise justifying the intervention of this court. It seemed to me at the hearing that point (iii), raising the question of allocation, might raise wider issues.

6. The ground of appeal in full is as follows:-

"At the appeal hearing HH Judge Price QC promised his judgment would deal with my challenge that there was no provision in the CPR to assess the costs of the action as a Multitrack case when the court categorically refused to allocate to the Multitrack. The costs consequently awarded are extremely disproportionate to the value of the claim. The written Order which took 9 months to draw up did not then deal with this point"

This ground is expanded in Mr Hutchings' more detailed statement of reasons.

7. It is to be noted first that the proceedings began before the CPR in April 1999, although the majority of costs were incurred thereafter. For that reason no formal track allocation took place. An application by Mr Hutchings to have the case retrospectively allocated to the Multitrack was refused, and an appeal dismissed by Neuberger J. Mr Hutchings goes into the background of those proceedings in some detail. Although we do not have the judgment of Neuberger J, it is quoted in a subsequent judgment of Brooke LJ in the Court of Appeal dated 17 February 2004 (para 6) as follows:-

"….I am by no means satisfied, any more than Judge Jones was, that he would have allocated to Multitrack if he had been asked… "

8. This can be contrasted with the position as it appeared by the time the matter came before Judge Price, who said this:-

"….the case was not allocated to track because it was started before the advent of CPR and continued beyond its introduction. It was governed by the transitional provisions. Had it been allocated to track, the parties agree that the Multitrack would have been its most likely home… "

The Judge referred to Mr Hutchings' attempt to rely on observations made by judges at an earlier stage as to the trivial nature of the dispute and the small amount of damages awarded, to support his argument that the case belonged in the fast track where "costs of half the sums claimed might reasonably be expected". The Judge rejected that approach noting that -

"….it was the choice of the parties to treat this as anything other than a trivial dispute and they have become obsessed with it."

He went on hold that in all circumstances of the case, the sums claimed were -

"…entirely proportionate to the importance the parties attached to this claim"

9. Having considered the matter further, I have no doubt that this is not an issue which would justify a second appeal. Neither the failure to allocate, nor the comments made by judges as to the nature of the claim, limited the discretion of Judge Price on this issue. Although it would have been open to him to deal with the case on a Small Claims basis (see White Book para 44.5.3), he was also entitled to take account of the way the case had in fact been conducted. I can see no error of law in the way he approached the matter. His decision turned entirely on the particular facts of this case, and raised no issue of wider significance.
10. For those reasons, I agree with Patten LJ that the application for permission to appeal must fail.