Nybakken-Stern v Cooch & Anor

A further appeal from a county court decision is permitted only in exceptional circumstances. Under section 55 of the Access to Justice Act 1999, the proposed appeal must raise an important point of principle or practice, or involve some other compelling reason. A possible injustice arising from related proceedings may satisfy that threshold, even where the proposed appeal faces substantial procedural and substantive difficulties. The court may adjourn the permission application for an inter partes hearing and direct that the appeal follow immediately if permission is granted.

The applicant sought permission to appeal, together with an extension of time, from an order of HHJ Dedman dismissing his appeal against a costs assessment by a district judge in the Southend County Court. The underlying action had been tried in the defendants’ absence and resulted in liability for costs.

The applicant relied principally on a later judgment awarding him damages and costs against the claimant and others. He argued that the later proceedings might indicate that an injustice had occurred in the earlier litigation. The central issue was whether the proposed further appeal met the statutory exceptional-circumstances test.

1. Permission threshold. A further appeal to the Court of Appeal was permitted only in exceptional circumstances. Section 55 of the Access to Justice Act 1999 required the proposed appeal to raise an important point of principle or practice, or to involve some other compelling reason.
2. Possible injustice. Without the applicant’s success in later proceedings, the statutory test could not be met. However, that success and its possible implications for the earlier county court action raised an important issue as to whether an injustice might have occurred.
3. Scope of the proposed appeal. The applicant’s complaints had largely challenged the original underlying judgment rather than particular items in the costs assessment. The court recognised that this created serious difficulties and that the proposed proceedings might expose the applicant to further costs.
4. Procedural order. The applications were adjourned for an inter partes hearing before two Lord Justices. The appeal was directed to follow immediately if permission was granted. The applicant was warned to obtain legal advice and carefully consider whether to continue.

• Southend County Court: HHJ Bradbury gave judgment on 14 October 1997 following a trial conducted in the defendants’ absence. A district judge assessed the costs on 8 March 2000, and on 12 May 2000 declined to reopen the matter.
• Southend County Court: HHJ Dedman dismissed the applicant’s appeal from the costs assessment on 3 August 2000.
• Court of Appeal (Civil Division): The applications for permission to appeal and an extension of time were adjourned for hearing on notice before two Lord Justices, with the appeal to follow immediately if permission was granted.