Persson v Ashford (t/a Ashfords Independent Professional Conveyancers)

An appeal against refusal of permission to appeal is generally outside the jurisdiction of the Court of Appeal. A further order, including a costs order, may theoretically be appealable with permission. An indemnity costs order is unusual and should ordinarily be supported by reasons. An appeal against such an order has no realistic prospect of success where the reasons are clear and disclose no error of principle. A judge may award indemnity costs where the appeal is wholly misconceived. The assessment of the amount remains a matter for the judge’s discretion.

The claimant had unsuccessfully sued the defendant conveyancer for negligence and fraud arising from a 1990 property sale. The trial judge ordered costs on an indemnity basis. The claimant’s subsequent application under CPR 44.14, based on alleged false evidence and other misconduct, was rejected by a deputy district judge as late and as an attempt to reopen substantive issues already determined.

His Honour Judge Morgan refused permission to appeal against that decision and ordered indemnity costs of £2,364.50. The claimant sought permission from the Court of Appeal to appeal against the basis and amount of those costs. The central issues were whether the costs order was appealable and whether the judge had erred in making it or assessing its amount.

1. Permission refused. The Court of Appeal had no jurisdiction to entertain an appeal against the refusal of permission to appeal under section 54(4) of the Access to Justice 1999. Consistently with Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1, a further order, such as a costs order, could theoretically be appealed with permission.
2. An indemnity costs order is unusual, perhaps exceptional, although less unusual under the CPR than previously. It should not be made without good reason, and the judge should generally give reasons. An appeal has no realistic prospect of success unless the reason for the order is unclear or the judge proceeded on a wrong principle.
3. The application to the costs judge on the alleged false-evidence point was wholly misconceived. It sought, in substance, to challenge or reopen the trial judge’s substantive findings and indemnity costs order through the costs assessment process. The proper route was an appeal from the relevant decision, not an attempt to reargue the issue before a costs judge.
4. The Court distinguished the unreported decision in Raja v Rubin. That decision did not assist because the present application was of an entirely different kind. A judge had power to order indemnity costs where an appeal was wholly misconceived.
5. The amount of costs was within the judge’s discretion. Its being somewhat high provided no basis for appellate interference.

Order: permission to appeal refused.

• Kingston County Court: The claimant’s claim for damages arising from the conveyancing transaction failed, and indemnity costs were ordered against him.
• Court of Appeal: Aldous LJ refused permission to appeal on the merits on 20 December 2000 and upheld the exercise of discretion concerning the original indemnity costs order.
• His Honour Judge Morgan: Permission to appeal against the deputy district judge’s costs-assessment decision was refused, and indemnity costs of £2,364.50 were ordered.
• Court of Appeal (Civil Division): Permission to appeal against the later costs order was refused.