Case Nos: B4/2010/2009, 2010 & 2011   (1)
B3/2010/1177   (2)
Neutral Citation Number: [2011] EWCA Civ 104
IN THE COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM EXETER COUNTY COURT 
(HIS HONOUR JUDGE GRIGGS)
(2) ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BULLIMORE) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 19th January 2011
Before:
LORD JUSTICE MAURICE KAY 
(Vice-President of the Court of Appeal, Civil Division)
LORD JUSTICE MOORE-BICK
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LORD JUSTICE ETHERTON
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Between
	(1) Thorne	Appellant	
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	Courtier & Others	Respondent	
			
	and --		
	(2) Fox	Appellant	
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	Foundation Piling Group Limited	Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
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Mr William Batstone (instructed by Ebery Williams LLP) appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
The Applicant did not appear and was not represented.
The Respondent did not appear and was not represented.
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Judgment
Lord Justice Moore-Bick:

1.	These two appeals raise once again the question of this court’s jurisdiction under the Access to Justice Act 1999 (Destination of Appeals) Order 2000, to which I shall refer as “the Appeals Order”.
2.	Following correspondence between the appellants’ solicitors and the Civil Appeals Office, in the course of which doubts were raised about the court’s jurisdiction to entertain these appeals, the Vice-President directed that there be preliminary hearings in order to determine the matter.
3.	Each of these appeals is against an order made by a county court.  In broad terms articles 2, 3 and 4 of the Appeals Order provide that an appeal from a decision of a county court lies to the High Court, save that an appeal lies to the Court of Appeal where the decision in question is a final decision in a Part 7 claim allocated to the multi-track.
4.	A final decision is defined in article 1(2)(c) as:
“…a decision of a court that would finally determine (subject to any possible appeal of detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it.”

Thorne v Courtier
5.	In this case the claimant started proceedings in the Exeter county court in February 2008 seeking possession of two parcels of land near Okehampton, Devon, which were being used by the defendant for agricultural purposes.  On 18 February 2009, HHJ Griggs held that the proceedings had been compromised as a result of the acceptance by the defendant of a Part 36 offer made by the claimant on 15 January.   The resulting agreement provided that the defendant would give up the possession of the land to the claimant and pay damages for trespass in an amount to be determined by an expert rural surveyor.  The order giving effect to the judgment included a provision that the proceedings be stayed save for the purposes of implementing the terms of settlement.
6.	Unfortunately, a dispute arose as to the correct interpretation of the settlement agreement.  The claimant said that damages for trespass were at large; the defendant said that they were to be assessed by reference to mesne profits.  As a result, on 9 July 2009 the claimant issued an application under CPR Part 23 seeking directions for the determination of the dispute.  On 6 October 2009 District Judge Harvey directed the parties to file an agreed summary of facts and statement of issues, an agreed bundle of documents and skeleton arguments.  He fixed a hearing for 15 December 2009.
7.	On 15 December the matter came before Mr Recorder Hollington QC.  After hearing argument, he adjourned the hearing because the claimant wished to raise a point which had not been covered in the evidence or skeleton arguments served by the parties.  In order to enable the point to be properly argued, he gave directions for the service of further evidence and skeleton arguments.  On 7 May 2010, the hearing resumed.  After further argument the Recorder gave a judgment in which he held that, on the correct interpretation of the agreement, it was for the court to decide the basis on which damages were to be assessed and that on the true construction of the agreement they were to be assessed by reference to mesne profits.  On 18 June 2010, an order was drawn up giving effect to his decision.  That is the order against which the claimant now appeals.
8.	Mr Batstone, who has appeared on behalf of the appellant, has submitted that the Recorder’s order gave rise to three separate decisions: first, a decision that the court was entitled to interpret the contract and to give a declaration as to its meaning; second, that the claimant was not precluded from pursuing the point by what had occurred during the proceedings before HHJ Griggs; and third, a decision on costs.
9.	I have to say that I doubt whether the court’s decision that the claimant was not estopped by the way in which the proceedings before HHJ Griggs had been conducted can properly be regarded as a separate decision for these purposes, despite the fact that a declaration to that effect was included in the order made by the Recorder, because it was in truth no more than a decision on a point of law which had to be decided along the route to dealing with the principal matter in dispute.  Moreover, the decision on costs is to be treated as a separate decision for reasons to which I shall come when dealing with the case of Fox v Foundation Piling Group Ltd.  In those circumstances, it is appropriate, in my view, to concentrate on the first of Mr Batstone’s three decisions.
10.	The doubts about the court’s jurisdiction in this case arise not just from the fact that the application was made under Part 23, which is the procedure provided for obtaining relief in the course of existing proceedings, rather than Part 7 or Part 8, but from the nature of the relief being sought and from the fact that the application itself might on one view be regarded as ancillary to the original proceedings.   (Those proceedings, although started under Part 55 were ordered to continue under Part 7.)  In my view, however, much of the difficulty in categorising the proceedings, and therefore the decision, can be resolved by having regard to their true nature.
11.	The compromise agreement was simply a contract between the parties to the proceedings, which, like any other contract, was capable of giving rise to a dispute about its meaning.  In substance the application, although in form made under Part 23, gave rise to independent proceedings.  In order to resolve their dispute the parties could have brought proceedings under Part 8, seeking a declaration as to the meaning of the contract, and in other circumstances they might have brought proceedings under Part 7.  Whichever course was adopted,  however, the decision made at the end of the trial would inevitably have finally determined the entire proceedings, whether it led to a declaration as to the meaning of the agreement or the application was dismissed.  It follows, therefore, that the decision in this case was in substance a final decision within the meaning of article 1(2)(c) of the Appeals Order.
12.	There are, however, other considerations pointing to the same conclusion.  Article 1(3) of the Appeals Order provides as follows:
“A decision of a court shall be treated as a final decision where it— 
(a) is made at the conclusion of part of a hearing or trial which has been split into parts; and
(b) would, if made at the conclusion of that hearing or trial, be a final decision under paragraph (2)(c).”

13.	The purpose of that paragraph is to ensure that decisions disposing finally of one or more issues which represent a self-contained part of the proceedings as a whole and which the court has ordered should be determined separately are treated in the same way for the purposes of appeal as an order that disposes of the whole proceedings.  That is obviously appropriate, because the decision is final within the meaning of article 1(2) in relation to a self-contained part of the case.  In the present case the issues relating to the meaning of the agreement were not determined at the conclusion of a trial that had been split into parts in the ordinary sense, but if and to the extent that they are properly to be regarded as part of the proceedings as a whole, they represented a self-contained part that was tried separately.  There is a close analogy, therefore, between the two cases, and to treat the decision made at the conclusion of the hearing as a final order would in my view be consistent with the purpose of article 1(3). 
14.	By itself, however, that is not enough for this court to have jurisdiction, because article 4 of the Appeals Order provides as follows:
“An appeal shall lie to the Court of Appeal where the decision to be appealed is a final decision—
(a) in a claim made under Part 7 of the Civil Procedure Rules 1998 and allocated to the multi-track under those Rules...”

15.	Following the court’s direction that it was to continue under Part 7, the original claim was allocated to the multi-track under rule 26, but the application, being in form an application in those proceedings, was not subject to any allocation order.  Does that take it outside the scope of article 4?  In my view, it does not.  The purpose of article 4(a) is to enable appeals against final decisions in matters of sufficient weight to be allocated to the multi-track to be made to the Court of Appeal.  Notwithstanding that the issue raised by the application is quite distinct from any of those which arose in the original proceedings, the fact that the application was made within proceedings that were allocated to the multi-track is, I think, sufficient to enable one to treat it as a claim that was allocated to the multi-track. 
16.	In the course of correspondence some concern was expressed by the Civil Appeals Office that there had been no decision finally determining the entire Part 7 proceedings.  In one sense that is correct because, as is normally the case when proceedings are compromised, an order was made staying them, save for the purposes of implementing the terms of settlement.  Technically, therefore, no final judgment has been, or is ever likely to be, entered on the original claim and the proceedings will remain stayed for ever.  However, that is not fatal if, as I think, it is appropriate to treat the application as constituting a separate part of the proceedings and therefore as falling within the scope of article 1(3).  Even if for some reason the stay were to be lifted (and I find it difficult to envisage circumstances in which that might happen), it would in my view make no difference, because the decision was made at the conclusion of the hearing of a separate self-contained dispute about the meaning of the contract and thus falls within article 1(3).
17.	For these reasons I am of the opinion that the court does have jurisdiction to hear an appeal against the Recorder’s decision.
Fox v Foundation Piling Group Ltd
18.	The other case before the court involves an accident sustained by the claimant, Mr. Fox, at work.  Proceedings were started in the Central London County Court in July 2006 and later allocated to the multi-track.  The defendant said that there had been contributory negligence on the part of the claimant, and the issue of liability was settled in December 2007 on the basis that the defendant would pay the claimant 87.5 per cent of the amount that he would have recovered on a full liability basis.
19.	A disposal hearing was fixed for the purposes of assessing damages, but in January 2009 the parties were able to agree on a gross payment of £37,500, which, after allowing for recoverable state benefits and an interim payment was reduced to a net figure of £24,202.53.
20.	The parties also agreed that the claimant should recover his costs incurred up to 20 October 2008.  However, they were unable to agree on liability for costs incurred after that date, each maintaining that the other should pay its costs.
21.	On 15 January 2010 HHJ Bullimore, sitting in the Sheffield County Court, heard argument on the disputed question of costs.  In a judgment delivered on 28 January 2010 he awarded the defendant its costs incurred in the period from 21 October 2008 to the date of settlement, principally on the ground that it had been the successful party during that period.
22.	On 19 March 2010 an order was made incorporating in paragraphs 1 and 2 a consent order giving effect to the parties’ agreement and in paragraph 3 the judge’s order relating to costs.  It is against paragraph 3 of that order that the claimant appeals.
23.	There appears to have been some doubt within the Civil Appeals Office whether this court had jurisdiction to hear an appeal against the judge’s order in respect of costs.  Accordingly, the Vice-President directed that the appeal be listed to enable that question to be decided.  In order to save costs, the parties asked us to deal with the matter on the basis of written submissions and we have agreed to do so.
24.	I have already referred to the salient parts of the Appeals Order.  The proceedings in this case were allocated to the multi-track, so the answer to the question turns on whether the order for costs is a final order.
25.	In Tanfern Ltd v Cameron-Macdonald & Anor [2000] EWCA Civ 3023; [2000] 1 WLR 1311 Brooke LJ, giving guidance on the new rules relating to appeals, said in paragraph 17 of his judgment:
“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" ([Appeals Order] Article 1(3)); it does not include a decision only on costs. (emphasis added) 

26.	Any confusion that may have resulted from that statement of judicial opinion was, however, dispelled by Brooke LJ himself in Dooley v Parker & Anor [2002] EWCA Civ 96 (unreported).  Commenting on the passage in his judgment in Tanfern Ltd v Cameron-Macdonald & Anor to which I have referred, he said at paragraph 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.””

27.	When the matter came before HHJ Bullimore on 15 January 2010 the only matter still in issue was who should bear the cost of the proceedings incurred after 21 October 2008.  The judge’s order finally disposed of that element of the proceedings and as such constituted a final order within the meaning of article 1(2) of the Appeals Order – indeed, it disposed of the proceedings as a whole. It also constituted a decision on a separate issue dealt with in the proceedings.  For both of those reasons I am of the opinion that this court has jurisdiction to hear an appeal against that order.
Lord Justice Maurice Kay:
28.	I agree.
Lord Justice Etherton:
29.	I also agree.
Order:	  Court has jurisdiction to hear both appeals.