Howell v Virani & Anor

On a second-tier appeal, permission may be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. A costs order remains within the judge’s general discretion. A judge may uphold a final approved order after deciding that it reflects the intended result and contains no accidental slip or omission, even if earlier exchanges suggested a narrower order. A sum’s significance to the individual concerned does not itself satisfy the statutory threshold.

The applicant faced bankruptcy proceedings arising from an unpaid debt. After the bankruptcy petition was not restored to the list, the deputy High Court judge made costs orders, including an order requiring payment of £1,500 and an order covering costs incurred up to and including 21 January 2000.

The applicant later asked the deputy judge to correct the order, arguing that it failed to reflect indications given during the hearing. On 2 October 2000, the deputy judge refused, finding that the order reflected his intention and contained no accidental slip or omission. The applicant sought permission to appeal out of time.

1. Permission refused. The application for permission to appeal out of time was refused.
2. The applicant argued that the £1,500 costs order should have been limited to costs wasted by the adjournment. The court accepted that the comparison of the costs statements appeared to suggest that the sum included preparation costs which might otherwise have been included in the later hearing. The possible excess was difficult to quantify and appeared to be in the region of £300 or £400.
3. Despite earlier exchanges which appeared to support a narrower order, the deputy judge was entitled to conclude that the £1,500 order should stand. He had approved the final order and later confirmed that it reflected his intention and was not an accidental slip or omission. The costs decision was an exercise of his general discretion.
4. The applicant also challenged the order requiring payment of costs incurred up to and including 21 January 2000. The deputy judge had expressly intended that result, and the issue likewise concerned the exercise of discretion.
5. Under section 55(1) of the Access to Justice Act 1999, a second-tier appeal required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear it. Neither proposed ground met that threshold. The financial significance of the sum to the applicant was not, by itself, a compelling reason.

• Court of Appeal (Civil Division): On 6 February 2001, Dyson LJ refused permission to appeal out of time in [2001] EWCA Civ 156.
• High Court of Justice, Chancery Division in Bankruptcy: On 2 October 2000, Mr Kim Lewison QC, sitting as a deputy High Court judge, refused to correct the costs order made on 18 May 2000.