Bright v Bright

Permission for a further appeal should not be granted merely to correct an alleged error unless the error is sufficiently substantial to justify the expense and procedural burden of a full appeal. Proportionality is especially important where the proposed appeal concerns costs, because costs involve a broad judicial discretion. A party should raise a readily correctable costs issue at the hearing itself. An appeal may be refused where the alleged error could have been addressed then, or where the available material is insufficient to demonstrate a substantial error.

This was a renewed application by the wife for permission to appeal from an order made by His Honour Judge Catlin in the Reading County Court on 26 July 2001. Judge Catlin had allowed her appeal from a district judge but ordered her to pay the costs of the hearing. The wife challenged the judge’s reasoning and alleged that he had failed to give effect to an earlier indication concerning the costs of a strike-out application. The central issue was whether the alleged errors justified a further appeal, having regard to the limited scope of second appeals, the breadth of the costs discretion and proportionality.

Application refused. Lord Justice Thorpe held that the application fell within section 55 of the Access to Justice Act 1999 and that the court should seldom entertain an appeal confined to costs.

1. The Court of Appeal is essentially a court of law whose function is to correct error in the course of trial. The alleged error must be sufficiently substantial to justify the expense and procedural burden of a full-scale appeal. Proportionality is therefore a relevant and decisive consideration.
2. Where a judge has already exercised an appellate jurisdiction over a district judge, the opportunity for a further appeal is extremely limited. That limitation is particularly important in costs matters, where the judge’s discretion is broad.
3. The court could not properly criticise Judge Catlin’s decision to order costs against the wife on the material available. The court lacked sufficient information about the issues and the evidential difficulties relied upon in challenging his reasoning.
4. The stronger complaint concerned the judge’s indication that the costs of a preliminary strike-out application should be paid by the losing party. The wife’s counsel had not asked the judge to address that point when the order was made. It was disproportionate to institute an appeal to correct an error which could have been corrected at the trial itself.
5. Thorpe LJ added that he had been hindered by the absence of a transcript. In the ordinary course, the transcript should be obtained from the transcribing firm, with the court’s obligation limited to making the recording available. The application was refused.

• Court of Appeal (Civil Division): Thorpe LJ refused the renewed application for permission to appeal.
• Reading County Court: on 26 July 2001, His Honour Judge Catlin, sitting on appeal from a district judge, allowed the wife’s appeal but ordered her to pay the costs of the hearing.