England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London Civil Justice Centre
His Honour Judge Mitchell
0CL10544

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2013

Lady Justice Arden :

1. Since I delivered my judgment on 15 October 2013 refusing the appellant permission to appeal, I have requested further submissions from both Counsel by email as follows:

"To counsel:

1. I no longer have the papers in this case but have been provided this morning with a further copy of the Order of HHJ Mitchell dated 15 March 2013. I would like to clarify a point.

2. paragraph 2 of the Order states that the third party should be liable for the costs "in accordance with the default costs certificate". My attention was not specifically drawn to these words yesterday. In addition, while I was not shown the default costs certificate, it is likely that it is addressed only to the claimant and it may be that it accordingly could only be set aside by her. Accordingly the effect of the judge's order may be that it would not as both Counsel and I assumed in the hearing be possible for Mr Salim to challenge the default costs certificate in the Senior Court Costs Office (SCCO). Those words would remove his opportunity to challenge the costs in the usual way.

3. I do not recall that the judge made a ruling in his judgment that these words should be included in his order. Please provide a copy of the judge's reasons, or a note of his reasons, for that part of his order by 5 pm Thursday 18 October 2013.

4. I should also be grateful to receive your submissions (not exceeding 5 pages) on this by 5 pm Thursday on the points made in paragraphs 2 and 3 above, if you wish to file any, and meanwhile I will direct that the order should not be drawn until this point has been clarified. I am not saying that this will make any difference to the outcome of either application for an adjournment or for permission on which I ruled yesterday. I need to consider this further matter."

2. I have received further submissions from the parties.
3. The respondents submit that the appellant did not argue below that the judge had a discretion, if he made a non-party cost order, to determine that the costs should be other than the costs in the default costs certificate. Accordingly, it is in my judgment arguable that the statement in paragraph 9 in his judgment that "the court has a wide discretion but that discretion must be exercised with justice and reason…" is not a reference to that part of section 51(3) which enables the judge to determine the extent of the third party's liabilities for costs.
4. I do not accept the further submission of the respondents that an appeal against the judge's order could only succeed if the appellant can produce credible evidence that the costs shown in the default costs certificate are inflated, which he has not done. Where there is a procedural irregularity, it seems to me to be arguable that the applicant does not need to produce that evidence. That would be a matter for the court hearing the appeal.
5. In the light of those submissions I have decided:

to recall my order refusing permission to appeal

to grant permission to appeal against the judge's order of 15 March 2013 and so far as necessary against his further orders of 16 April and 26 June 2013 on this ground:

the judge was wrong to include in his order a provision that the costs to be paid by Mr Saleem pursuant to section 51(3) of the Senior Courts Act 1981 should be those shown in the amount of the default certificate.

6. My reasons are as follows: On reflection, I conclude that there is a real prospect of success on appeal in arguing that:

1. (contrary to the way in which the manner was put at the hearing before me) the appellant can only challenge (if at all) by this appeal the determination by the judge that the costs payable by the appellant should be those for which the default costs certificate had been issued against the claimant.

2. the judge overlooked his discretion under section 51(3) to consider the extent to which the appellant should pay the costs of the action and/or the way in which the amount of those costs should be established.

3. the judge wrongly assumed that the defaults costs certificate was binding on the appellant.

4. the judge overlooked the need to provide the appellant with an opportunity to be heard on the costs in the respondents' costs schedule.

5. in so far as the judge made a summary assessment of the costs he was not entitled to do so under the CPR.

7. The application (if any) to admit in evidence the email from costs drafter (Steve Page) dated 9 October 2013 is refused. Mr. Page had not considered the papers in this matter.
8. I direct as follows:

(1) Time estimate: ½ day. 2 or 3 member court which may include a High Court Judge.

(2) Any renewed or further application to admit further evidence on the appeal must be by notice in writing which is made to the court hearing this appeal and must be lodged not less than 21 days before the hearing date.

(3) The parties should consider mediation and the appellant must inform the court prior to the hearing of the appeal whether steps in that regard were taken.

(4) An order should now be drawn reflecting this ruling.