Arthur J S Hall & Co v Simons (Costs)

Where an appeal has been decided but the substantive proceedings continue, the court may order taxation of costs while directing that payment is deferred until final determination. This avoids premature payment and allows related costs, including legal aid costs, to be dealt with economically and consistently. Leave to appeal may properly be refused where the issues are important but other pending cases may provide more suitable vehicles, and where further appeals would impose disproportionate costs on legally aided or modestly funded litigants.

The court dealt with costs and applications for leave to appeal in four related appeals concerning the law governing advocates’ immunity and the striking out of claims. The appeals had been determined by the Court of Appeal, but the underlying litigation was to continue to trial. The parties disputed whether costs should be taxed immediately and whether payment should be deferred.

The court also considered applications for leave to appeal to the House of Lords. The central questions were how the costs orders should operate pending final determination and whether these appeals were the appropriate vehicles for further appellate consideration.

1. Costs. The court ordered taxation, including legal aid taxation where applicable, in each case. Payment under the costs orders was deferred until the final outcome of the proceedings. The court considered this approach appropriate because the costs issues were closely interlinked, further proceedings remained, and possible set-offs could arise at the conclusion of the litigation.
2. Leave to appeal. The court recognised that the appeals raised issues of considerable importance to practising lawyers, their insurers and users of legal services. Importance alone did not require leave to be granted in these appeals.
3. The court declined to grant leave because the costs of further appeals would be disproportionate to the sums at stake for the individual litigants, other pending cases might provide more suitable vehicles for consideration by the House of Lords, and the individual litigants required protection from further costs exposure. Further expenditure by the Legal Aid Board was also relevant.
4. The appropriate course was for any petition for leave to be made directly to the House of Lords, enabling that court to decide which appeal, if any, was the most suitable vehicle and how any further appeals should be managed.

• Court of Appeal (Civil Division): Determined four related appeals, ordered taxation of costs and directed that payment be deferred until the final outcome of the proceedings. Leave to appeal to the House of Lords was refused, leaving the parties to petition that court directly.