Gregory & Anor, R (on the application of) v Turner & Anor

A costs order made when a county court judge refuses permission to appeal may be appealable even though Access to Justice Act 1999, s 54(4) bars an appeal against the permission decision itself. On an application made without notice, a respondent who attends uninvited may receive reasonable costs where attendance materially clarifies the issues and prevents permission being granted for an appeal bound to fail. The costs discretion is exercised afresh and is not dictated by an earlier order that each side bear its own costs. Where the county court decision was itself made on appeal, Civil Procedure Rules 1998, r 52.13 imposes the higher requirement of an important point of principle or practice, or another compelling reason.

Mrs Gregory and her daughter brought proceedings against their neighbours concerning an admitted four-and-a-half-inch encroachment caused by a garage. District Judge Exton awarded £100 nominal damages and ordered that the parties bear their own costs. Judge O'Malley refused permission to appeal on four substantive issues and awarded the respondents £2,000 costs after their counsel attended and assisted the court.

Mrs Gregory, represented by Mr Morris as a lay litigation friend, sought permission to appeal to the Court of Appeal on the costs issue. The central questions were whether the costs order was appealable, whether the judge had properly exercised the costs discretion, and whether the higher permission threshold applied.

Application refused. Sedley LJ held as follows:

1. Appealability of costs. Section 54(4) of the Access to Justice Act 1999 barred an appeal against the decision to give or refuse permission to appeal. It did not, however, prevent an appeal against a costs order made for the first time by the permission judge as an original issue.
2. Costs where the respondent attends without notice. A respondent's attendance at an application for permission to appeal is not automatically a luxury for which the respondent must pay. Although attendance is not obligatory where notice has not been given and the court has not required it, the judge may award reasonable costs where the respondent's lawyers clarify the issues and demonstrate that permission should not be granted for an appeal which would otherwise proceed to an unsuccessful opposed hearing. The discretion is not mandatory and must be exercised judicially.
3. Fresh costs discretion. The fact that the district judge had ordered that costs lie where they fell did not dictate the order on the later permission application. The issues were different and the costs discretion had to be exercised afresh. The summary assessment of £2,000 was neither arbitrary nor unreasonable.
4. Permission threshold. Because the county court decision had itself been made on appeal, rule 52.13 of the Civil Procedure Rules 1998 required the higher threshold to be met. Permission could be granted only if the appeal raised an important point of principle or practice or there was some other compelling reason for the Court of Appeal to hear it. The proposed appeal met neither that threshold nor, in the judge's view, the ordinary realistic-prospect threshold.
5. Obiter. Sedley LJ warned that lay advocacy carries real risks. Goodwill and experience do not substitute for legal training, and a litigant should be warned that an unnotified respondent may learn of the application, attend, and obtain costs if successful in resisting permission.

• Court of Appeal (Civil Division) — in [2001] EWCA Civ 1952, Sedley LJ accepted that the costs issue was capable of being appealed but refused permission.
• Bristol County Court — District Judge Exton awarded £100 nominal damages for the admitted encroachment and ordered that each side bear its own costs.
• Bristol County Court, on an application for permission to appeal — Judge O'Malley refused permission on the substantive issues and awarded the respondents £2,000 costs.