England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CARDIFF DISTRICT REGISTRY
His Honour Judge Milwyn Jarman QC
sitting as a High Court Judge
Case No: 9CF30096

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/04/2011

Lord Justice Rimer :

1. This is a renewed application for permission to appeal, Arden LJ having refused permission on the papers on 27 October 2010. The proposed appeal is against an order dated 8 July 2010 of His Honour Milwyn Jarman QC, sitting as a High Court Judge. The order followed a two day trial on 5 and 6 July. The applicant is Gordon Worsdell, the defendant. With no intended disrespect, I shall, for brevity and I hope clarity, refer to him and the other family members by their first names.
2. Gordon was represented at the trial by solicitors, Behr and Co, and counsel, Gareth Jones, but in about early January 2011 he dispensed with their services and he advanced this application to me in person. I do, however, have the benefit of Mr Jones's skeleton argument for the proposed appeal. The respondents, the claimants, are Gordon's sisters, Glenys Golledge and Elaine Dally. The three parties are the children of Ivor and Caroline Worsdell, who died in 1994 and 2004 respectively. Caroline died intestate and so the three are entitled under her intestacy to her net estate in equal shares. Glenys and Elaine are her administratrices. The dispute was as to the beneficial ownership of a house at 27 Belle Vue Road, Cwmbran, worth some £87,500 in June 2010.
3. By his order the judge declared the house to be '… held in the estate of [Caroline] in shares of 60% for [Gordon] and 40% for [Glenys and Elaine].' He dismissed a Part 20 claim brought by Gordon's former wife, Gillian, who was in occupation of the house, and ordered her to give vacant possession of it to the sisters by 2 September 2010.
4. So far as material, the judge explained the history of the ownership of the house. By 1989 it was vested in a Mrs Manning as administratrix who held it in equal shares for (i) the estate of Gordon's late uncle (Ivor's brother) Wilmot and (ii) Wilmot's niece, Vera. Wilmot had, by his will, left his share in the house to Ivor. In February 1989 Ivor and Caroline bought the house from Mrs Manning for £17,000, with (according to Mr Jones's skeleton argument) half the price being credited as satisfied by Ivor's beneficial entitlement under Wilmot's will and the balance of £8,500 being paid in cash. In substance, Ivor and Caroline were simply buying in Vera's half share. The judge described the purchase slightly differently, saying that, according to the completion statement, £8,154.17 was provided by way of Ivor's existing beneficial share and that a balance of £9,156.68 was needed to complete the purchase, figures which apparently included the costs of the purchase. The difference in description is not, I consider, material. The judge also, however, appears to have recognised that £8,500 for the outstanding half share was paid in cash.
5. Ivor and Caroline bought the house in joint names, the transfer to them making no express declaration as to their beneficial entitlement. The presumption, therefore, is that they took as beneficial joint tenants. Gordon's case before the judge, as summarised in Mr Jones's skeleton argument for the proposed appeal, was however (i) that he had paid the £8,500 himself and so acquired the entire beneficial interest in the house (an assertion I understand to depend also upon a claim that Ivor had earlier told him he could have his own half share); (ii) that everyone intended that he should be the sole beneficial owner; (iii) that in reliance on such entitlement, known to all parties, he had undertaken various works to the house and made various payments the effect of which was to give him his claimed interest under either a constructive trust or a proprietary estoppel. The judge summarised Gordon's case slightly differently, namely (i) that Ivor promised his own beneficial half share in the house to Gordon, in reliance upon which promise Gordon carried out the works and made the payments; (ii) that Gordon's payment of the £8,500 in 1989 entitled him to Caroline's half share; and (iii) that he relied in the alternative on an agreement made on 8 February 2002 as a result of which Caroline moved out of the house and into another property.
6. Ivor died in 1995 whereupon the legal estate in the house vested in Caroline alone by survivorship, who continued to occupy it until 2002. Elaine conceded in her witness statement that she remembered Caroline saying that:

'… when anything happened to them Gordon would have the greater share, ie one half of the house because of the work he had done. She expected that the other half would be split between myself and my sister Glenys.'

Caroline was there said to be referring solely to the works that Gordon had done to the house and Elaine denied at the trial that he had also paid anything towards its purchase. The judge referred in paragraph 5 of his judgment to the concessions made by the sisters, referring to them as concessions that Gordon:

'… should have a bigger share in the equity than his sisters. Concessions were made in their statements that he is entitled to 50 per cent of the equity in that property with the remainder to be divided between the two of them.'

7. In describing the purchase of the house in 1989, the judge found that Gordon was apparently the main protagonist, in which connection he had retained solicitors of his own. Those solicitors recorded in a letter of November 1988 that he was not, however, purchasing the house himself but that it was being purchased in the joint names of Ivor and Caroline, as happened. No record was made at the time that Gordon had any beneficial interest in the house. In 1990 Ivor and Caroline obtained a renovation grant from the local authority. It was paid to Gordon as the appointed builder, who then carried out the works of improvement to the house upon which he relied in support of his claim.
8. In 2002 three remarkable agreements were entered into. First, a handwritten agreement, dated 8 February 2002, that was written out by Gordon and signed by him, Gillian (his then wife) and Caroline. It read as follows:

'To whom it may concern. It has been agreed on this day, 8^th February 2002, between [Caroline], [Gordon] and [Gillian], that [Gillian] will move into [the house] when [Caroline] has vacated it to live with son Gordon. Gillian will move in with son William, who already lives there with his nan, [Caroline]. The house in the names of [Caroline] and son [Gordon] is to have [William's] name put on the deed on his eighteenth birthday and [Caroline's] taken off. Despite claims by [Caroline] that Gordon has purchased the property, it is agreed that Gillian will give £24,000 for half the property at £50 per week. This is backed up by [Gordon], to [Caroline]. There is no interest to be added but terms are imposed. Gillian cannot borrow against the house and the house cannot be sold without [Gordon's] consent. Believing this to be a legal binding agreement between the parties above.'

9. That perhaps suggested, wrongly, that the house was registered in the joint names of Caroline and Gordon. It also included an apparent admission by Gordon that Caroline not only had a half share in it but that Gillian was to buy it for £24,000. That document, Gordon's own work, lies uneasily with his claim that he owned the entire beneficial interest in the house.
10. On 5 March 2002, two further agreements were signed by Gordon and Caroline. The first, headed 'Change of Ownership', also referred to the house as currently in the joint ownership of Caroline and Gordon and continued:

'… it is agreed that I, [Caroline], do sell my half share of [the house] to [Gordon] the full sale price on this day, 5^th March 2002, being £48,000. Gordon will pay me my half share of £24,000 at the rate of £200 per month until my death. At the time of my death the remainder will be paid in full into my estate.'

11. That too was inconsistent with Gordon's case. Under this agreement, Gordon rather than Gillian was buying Caroline's half share. The second agreement of 5 March 2002, headed 'Rental agreement', concerned a property at 38 East Road. It read:

'On this day, 5^th March 2002, I, [Gordon], have agreed that [Caroline] shall live on the ground floor of [No 38] for the agreed rent of £40 per week, the rent payable at the time of her death. I, [Caroline], have agreed that I will live at [No 38] at a weekly rent of £40 but I will not have to pay anything until my death, when the total amount of rent owed will be deducted from my estate.'

12. Turning to the issues in the case, the judge observed that there was little documentary evidence as to whether Ivor made any representations to Gordon as to Gordon's entitlement to the house or as to whether there was any common intention on the part of Gordon and his parents as to the nature of his interest in it. He said there was also a paucity of evidence on each of the issues he had to decide, including what works Gordon carried out and what payments he made. In paragraph 12 he said he had '… formed the clear impression in respect of each witness that there was a reason to be cautious about accepting his or her evidence at face value'. He referred in paragraphs 14 to 20 to aspects of Gordon's evidence about which he was critical.
13. He dealt in paragraphs 24 and 25 of his judgment with the proprietary estoppel claim. He there gave his reasons why he did not accept that Ivor (the only alleged representor) ever made any representations to the effect that Gordon was to have either the whole house or at least his, Ivor's, half share in it. Furthermore, the house was bought in the names of Ivor and Caroline, with no note recording Gordon as having any interest in it, and the judge rejected as unlikely Gordon's suggestion that this was a mistake by the solicitors who had been acting for him at the time, against whom no claim had been brought. Moreover, the claim did not sit well with Elaine's evidence, which the judge accepted, that Caroline had said that Gordon would get a bigger share of the house than his sisters because of the works he had carried out to it; and, following the carrying out of the works in the 1990s, no change was made to the registered title. The judge did not accept Gordon's explanations as to why no change was made. He also rejected Gordon's case, and explained why, that there was a common intention that the whole house should belong beneficially to him, and he pointed out in paragraph 26 how that claim was inconsistent with the 2002 documents. To the extent that Gordon was asserting a claim to the whole house based on oral representations and reliance, the judge's findings of fact meant that his case had to fail.
14. On the other hand, the judge accepted the sisters' evidence that there was a common intention that Gordon should have a 'bigger share' in it as a result of the works he had carried out. Such common intention was, according to the evidence he summarised, an imprecise concept, and Elaine's written and oral evidence was not, it appears, consistent about the nature of Gordon's intended share. Having considered the evidence, the judge found that the intention was that Gordon was to have a bigger share than a one third share when the house ultimately devolved on the children following the parents' deaths, not that he was to have at least a half share in the house.
15. The further case made by Gordon was that he had paid the £8,500 for Caroline's share of the house in 1989. In paragraphs 28 to 30 of the judgment the judge found that he did pay that sum, also finding that it was unlikely that he had also paid any further, undocumented sums. This payment is asserted to have given him a beneficial interest in the house; and the point is made in counsel's skeleton argument that the sisters' concession as to the larger share was referable exclusively to the carrying out by Gordon of the works to the house and not to the fact of the payment of the £8,500.
16. The judge recognised this as the limit of the sisters' evidence but he nevertheless found as a fact, in paragraphs 32 and 34, that the common intention as to Gordon having a bigger share as aforesaid was referable not just to the works but also to the payment towards the purchase price for the house that he had made in 1989. He said, in paragraph 34:

'I am satisfied, as I have indicated, that there was an actual common intention on the part of [Gordon's] parents and himself that he should have a share of the property over and above that which he was entitled on an intestacy to reflect the monies he paid in 1989 and the works he carried out. Taking the figures which I have referred to and the value at the time, I find that his share, according to that common intention, was 40 per cent of the equity after the works had been carried out.'

17. The judge regarded the consequence of that as being that (a) Gordon had a 40% share in his own right, and (b) that the remaining 60 per cent devolved with Caroline's estate under her intestacy, so that he was destined to pick up another 20 per cent following her death. The outcome was, as his order declared, that the house was held in shares for the two sisters and Gordon in the proportions 20%, 20% and 60%.
18. Gordon is dissatisfied with that and by his appeal he seeks to make good his claim that he was and is always entitled to 100% of the house. That case assumes a mantle of some absurdity in light of the 2002 agreements, which appear to acknowledge that Caroline then had a half share in the house. The three documents provided, as the judge put it, for different outcomes, and they confirmed his impression that Gordon was willing to manipulate documents for his best advantage. The judge set them aside as procured by undue influence, as to which there is no challenge.
19. Mr Jones's skeleton argument does, however, challenge the judge's 40% conclusion. He submitted that it did not reflect the approach endorsed by the House of Lords in Stack v. Dowden [2007] 2 AC 432. This was, he said, because it failed to reflect Gordon's £8,500 contribution to the purchase price of the house, his subsequent works to the house and the concession by Elaine that he was entitled to at least a 50% share. This line of argument appears to me to find no direct support in Stack and appears to me to be unsound. Stack shows that the presumption is that the house, upon its purchase, was presumed to be owned beneficially by Ivor and Caroline in equal shares. The judge recorded that, at the time of the purchase, Gordon, by his solicitors, expressly disavowed that he was purchasing it. He also found as a fact that no representations were made that Gordon should have the whole house and so his claim to have acquired such an interest in reliance on his works of improvement was necessarily destined to fail. The judge did, however, find that, because of both his contribution to the purchase price and the works he did, there was a common intention that Gordon should have a larger share in the house than his sisters were to have. The point that they conceded, namely that he should have at least a 50% share, may have been supported by Elaine's witness statement, but that statement was the subject of cross-examination and the judge's overall conclusion on the evidence was that the true nature of the intention went no further than that Gordon should have a share larger than a third share, which the judge fixed at 40%. That was in my view a judgment that, on the face of it, the judge was entitled to make on the evidence that he described. No transcript of the oral evidence has been produced with a view to showing that it was not. There is therefore in my view no real prospect of satisfying the Court of Appeal that he should have arrived at a different percentage. Under Caroline's intestacy, Gordon also picked up 20% of the remaining 60%, so that he ended up with 60% of the house. In my judgment, by reference to the arguments advanced in the skeleton argument, Gordon's claim to a greater share in the house than that has no real prospect of success on an appeal. I would refuse him permission to appeal with a view to an attempt to establish any greater share.
20. The further ground of appeal advanced by the skeleton argument is that, whilst it is not suggested that the judge was wrong to set aside the 2002 agreements, it is said that he was wrong not in turn to order the estate to repay the money that Gordon had paid Caroline under the agreement for the sale of her half share in the house. The submission is that, upon setting aside the agreements, the judge ought to have done equity by ordering the repayment to Gordon of the money he had paid under them. Gordon's evidence in his witness statement had apparently been to the effect that he had paid Caroline £200 cash a month from February 2002 until her death on 8 December 2004. Such payments were claimed by Gordon to total £6,600. The skeleton argument asserts that at least £8,131 is due for repayment to him, although precisely how that is made up is obscure. It is relevant to note that Gillian's pleaded case was that she paid Caroline some £7,800, although she also said that Gordon paid Caroline 'other sums on [her] behalf.'
21. The judge dealt with Gordon's repayment claim at paragraphs 42 and 43, where he said:

'42. I also have reservations about whether the sum of £50 a week was paid every week, as alleged by [Gillian] and [Gordon] for the reasons I have already alluded to in respect of this payment. The documentary evidence, such as there is, is inconsistent with such a payment. It may well be that payments were made from time to time when [Gordon] or [Gillian] saw [Caroline] but I am not satisfied that they were as regular as claimed. In my judgment they amounted to no more than the benefit of occupation.

43. Accordingly, there is no interest in favour of [Gillian], either by way of estoppel or by way of equitable accounting. The same applies to [Gordon]. The result in my judgment, is that the property continued to be held beneficially for [Caroline] subject to the beneficial interest of her son in respect of the contribution and work which he carried out in 40 per cent. That was the extent of the extra share according to the common intention I have found. On death, therefore, the estate was entitled to the remaining 60 per cent to be divided between [Caroline's] daughters and son. The result, in my judgment, is that each of the daughters is entitled to 20 per cent and the son to 60 per cent.

22. I cannot see what is wrong with that. It is relevant to remember that the judge found Gordon to be an unreliable witness, who manipulated documents to his own advantage and exercised undue influence on Caroline. Moreover, in paragraphs 16 and 21 the judge had dealt with the matter of the payments allegedly made by Gillian and/or Gordon and they show just how unimpressed he was about the evidence of both and, in my view, of Gordon's claim to have made all the payments that it is asserted he did pay. Whilst the proposed appeal is directed at inviting the Court of Appeal to take Gordon's evidence at face value, the judge was plainly not prepared to do so. He did not accept that Gillian and/or Gordon had paid Caroline all that they claimed to have done; and he found that such sums as they did pay should be regarded as referable to an occupation rent to Caroline for her interest in the house, from which she moved to No 38 in 2002. That was how the judge did the equity that it is said that he failed to do. In my judgment, no criticism can be mounted as to his approach. That was his assessment of the evidence he heard and there is again no real prospect of the Court of Appeal second-guessing him on it. It was the judge's task to find the facts, and the material before me does not satisfy me that he was not entitled to make the findings that he did.
23. I allowed Gordon 45 minutes to address me in support of his application for permission, although it proved to be a somewhat random and unconstructive exercise. He referred me first to a manuscript draft will that Caroline purportedly signed on a date not mentioned in the document, but which Gordon said was 1998. The purported will was invalid for want of execution in compliance with the Wills Act 1837. It directed that Caroline's 'money' was to be divided between her three children and then (perhaps – the writing is unclear) to say 'the most to my son.' The evidential value of this document in relation to the particular issues at stake in the proceedings appears to me to be nil. If the suggestion is that it showed that Caroline wanted Gordon to have a larger share of the house on her death, it is apparently contrary to Gordon's case, which was that by 1998 he already owned the whole house beneficially. In any event, the document was not put before the judge, as plainly it could have been, and so he cannot be faulted for not taking account of it. Even if it would have been of any probative value on the issues before the judge, the document cannot, in the circumstances, now be used for the first time before the Court of Appeal.
24. Next, Gordon sought to say that the 2002 documents supported his case that he owned the whole house, even though they appeared to reflect that Caroline owned a half share, and moreover a share that either Gillian or he -- depending on which agreement one reads -- was proposing to buy. Gordon said that in this respect the documents reflected a 'misprint' and that their commercial purpose was simply to enable him to make financial provision for Caroline, which he said she needed. Apart from being an incredible explanation for the documents, it is not clear to me how Gordon squares that rationalisation of the money he paid her with that ground of his proposed appeal directed at achieving its repayment. In my view, there is nothing in Gordon's further points to me about the 2002 agreements. The judge made his findings about them that he did and set them aside. The Court of Appeal is not going to reinstate them, nor is it going to entertain Gordon's explanation that their drafting was all some unfortunate mistake.
25. Gordon referred me next to an Advice that counsel had written for the benefit of his sisters in 2007, which Gordon said was sent to him in June 2007. Quite in what circumstances it came to be so sent, he could not explain. He accepted that the judge was not referred to it. He said he did not appreciate until after the trial that it was not in the court bundle. If it had been relevant and admissible, it plainly could have been put before the judge. As it was not, there is no basis on which the Court of Appeal will now be prepared to look at it. In any event, it is also of no probative value in support of Gordon's case. The high point in it is counsel's view that if Gordon could not make good his claim to the whole house, he would be likely to be advised to bring an alternative claim based on proprietary estoppel. It appears that counsel did not regard any such case as hopeless, although her views as to its likely outcome have been redacted from the copy Advice that Gordon produced. Gordon did bring a proprietary estoppel claim and the judge rejected it. The fact that the sisters' counsel may have regarded the claim as arguable is irrelevant and does nothing to undermine the judge's reasoned decision.
26. Gordon's next point was summarised as follows in a document he had prepared. It read thus:

'In first statement Elaine Dally and Glenys Golledge state I should have 50% the remains [sic] 50% shared but having invalidated mother's will should 1/3 each. Thus beating part 36, 60 40 offered.'

What 'statement' that refers to I do not know. Gordon could not produce it, nor, he said, was it before the judge. Once again, the judge cannot be faulted for not placing reliance upon it and there is no reason why the Court of Appeal should place any reliance on Gordon's unsupported assertions about it either. The judge had the sisters' evidence about Gordon's entitlement, he assessed it and made the findings that he did.

27. Gordon referred next to Elaine's witness statement of 25 June 2010, which was before the judge and upon which she was cross-examined. In the copy provided to me, Gordon has added various side notes by way of comment (by way of example, the first, against paragraph 2, reads 'Here she lies'). The reference to this document is pointless. The judge read the statement, heard Elaine cross-examined on it, made his findings on her evidence and factored them into his assessment of the factual conflicts. Gordon may disagree with the findings but the Court of Appeal is not, I consider, going to review them.
28. Gordon referred me next to a page of photographs of the house, to the document of 3 February 2002 and to a three and a bit page document headed 'Summary of Accounts', all of which were before the judge and of which he is to be presumed to have had regard in making his findings. All that this document says about the payments allegedly made by Gordon to his mother following the 2002 agreements was that he made 'Cash contributions to mother – 5^th March 2002 to 8^th December 2004 33 months @ 200 per month £6,600.00.' There is also a reference to a 'Building Society bond - £3,000.00' although its supposed relevance is obscure. Gordon also made the point that a list of building works that he had carried out to the house was not before the judge. If that list was relevant to his case, any fault in not adducing it in evidence must be laid at Gordon's door and, yet again, the judge cannot be faulted for not having had regard to it. In that connection, Gordon also made points to me about the value (said to be £24,000) of the works he did to the house, although he accepted that there was no evidence before the judge making that good. He also said that he received only £5,500 by way of a Council grant for the works. Those points do not take him anywhere. The judge made the findings that he did about the significance of the works.
29. Finally, Gordon produced to me a copy of the judge's judgment on which he had annotated various comments in the margin of each page. These reflect his disagreement with the judge's approach in material respects. They purport to found the basis for a re-trial of the factual issues rather than a rational basis for a submission that the judge fell into material error in making the findings that he did. They do not, I consider, provide any basis for a serious challenge to the judge's overall conclusions. The only grounds of appeal against the judge's decision on the substantive issues before him are those covered by counsel's skeleton argument. For the reasons given, I am not persuaded that there is any basis for an appeal against that decision. In my view, an appeal would have no real prospect of success. Nothing that Gordon added orally persuaded me otherwise.
30. I come finally to another point that counsel raised in his skeleton argument, one going to the judge's costs order. The bringing of the sisters' claim was preceded by an application for directions under Re Beddoe, Downes v. Cottam [1893] 1 Ch 547. That application was compromised by a consent order of 2 October 2007 permitting the sisters to bring a claim to determine the beneficial ownership of the house, provided that any such claim was not issued before 2 January 2008. The order provided for all three parties to be indemnified from the estate in respect of their costs of such proceedings up to the limit of the net value of the estate; and, if such limit was insufficient, the sisters were to be indemnified up to one half of such value, and Gordon likewise.
31. The costs order that the judge made after the trial was as follows. By paragraph 3 of his order of 8 July 2010, he ordered Gordon's and the sisters' costs for the period 2 October 2007 to 29 October 2008 to be paid out of Caroline's estate, paragraph 3 recording that order as 'pursuant to the Consent Order of 2^nd October 2007.' He directed such costs to be assessed if not agreed. By paragraph 4, he ordered Gordon to pay the sisters' costs 'from 30^th October 2008 (being the expiry of the [sisters'] Part 36 offer).' He also directed the assessment of those costs if not agreed.
32. The sisters' Part 36 offer was made by a letter of 7 October 2008 and proposed that Gordon should have a 60% share of the house and they should share the remaining 40%. The offer remained open for 21 days from the date of its receipt. Gordon was warned that if he did not accept it, the sisters would rely on CPR Part 36.21. Gordon rejected the offer on 24 October 2008 and the sisters commenced the proceedings on 3 September 2009. As will have appeared, their offer was a well-judged one.
33. When the parties came to argue the issue of costs, the sisters conceded that the 2007 consent order governed the incidence of costs down to 30 October 2008, but their counsel submitted that thereafter its effect was overridden by the rejected Part 36 offer. For Gordon, Mr Jones accepted that prima facie Gordon's rejection of the Part 36 offer – which he did not beat at the trial -- carried with it its usual effect as to costs. He submitted, however, that in the circumstances Gordon should not have to pay such costs, or at any rate all of them. That submission was based primarily on a criticism of Elaine's evidence, which was said to go to a matter of conduct requiring a tempering of the ordinary Part 36 costs consequences. Secondly, Mr Jones submitted that, despite the Part 36 offer, the 2007 order continued to govern the incidence of costs down to judgment, so that all three parties should have their post-30 October 2008 costs out of the estate. The point was based on the assertion that Gordon's right in that respect was a matter of contract, contained in a consent order, which no party had had set aside.
34. As appears from his order, the judge rejected that submission, and his lack of sympathy for the submission is apparent from the exchange with counsel during the argument, of which I have a transcript. I have, however, no copy of his costs judgment itself, which has not been transcribed. In dealing with Gordon's permission application on the papers, Arden LJ inferred that he took the view that the 2007 consent could not extend to costs unreasonably incurred and that he could so regard the costs which Gordon caused to be incurred following his rejection of the sisters' Part 36 offer.
35. I would accept that the 2007 consent order would prima facie extend to all costs properly and reasonably incurred by all parties in the proceedings it was permitting. It does not, however, in my view make good sense to interpret it as entitling any of the parties to cause costs to be incurred unreasonably in such proceedings and expect them to be paid out of the estate. There must to that extent, as a matter of business efficacy, necessarily be an implied limitation on the width of the order; and I should be surprised if, for example, the effect of the consent order was such as to entitle a party unreasonably to refuse to co-operate in settlement negotiations and then claim that all subsequently incurred costs should be paid by the estate. Like Arden LJ, I infer that the judge assessed that the refusal of the Part 36 offer justified him in regarding Gordon as having caused the subsequent costs to have been unreasonably incurred such as to fall outwith the limits of the consent order. Quite how the judge in fact put it, I do not however know, because although Arden LJ directed that a transcript of his costs judgment was to be obtained if her refusal of permission was to be challenged, no transcript has been obtained. Nor, as I followed his representations, did Gordon seek to develop this ground of appeal. My instinct is that the way in which the judge disposed of the costs issue was properly within his discretion and that an appeal against his order would have no real prospect of success. In the absence, however, of any transcript of his reasons, when such could and should have been obtained, I would anyway not be prepared to conclude that his decision on costs was arguably wrong such as to merit the giving of permission of appeal against it.
36. I refuse permission to appeal on all grounds.