Mayflower Estates Limited v Highnorth Limited & Ors

Permission to appeal should be refused where the proposed grounds disclose no real prospect of success. A challenge to declarations of title and an easement requires material showing that the declarations were wrongly made. An appellate court will not interfere with a first-instance costs discretion where proceedings were properly brought against defendants making common cause and represented by the same legal team. A claimed settlement does not prevent proceedings or justify altering costs unless the correspondence establishes a concluded agreement with the necessary parties. The claimant’s position is assessed as it reasonably appeared to the claimant and its solicitors when the proceedings were issued.

Mayflower Estates Limited sought declarations concerning ownership of commercial parking land and a right of way over land owned by Highnorth Limited. The other defendants were companies and an individual associated with the use of the adjoining units.

The defendants alleged that the proceedings were premature, collateral and directed to an issue concerning the parking of large commercial vehicles. No counterclaim was brought on that issue. Pumfrey J granted the declarations following an application under CPR Part 24 and ordered the defendants to pay the claimant’s costs, including £16,000 on account. Three applications for permission to appeal challenged the declarations, the costs order, or both. The central question was whether any application disclosed a real prospect of success.

Lord Justice Chadwick delivered the sole judgment and refused permission to appeal in all three applications.

1. The challenges to the declarations of title and the right of way disclosed no arguable error in Pumfrey J’s order. The defendants’ allegations that the proceedings were premature or brought for a collateral purpose did not undermine the declarations. The absence of a counterclaim meant that the alleged wider dispute was not before the court for determination.
2. The alleged settlements did not provide a basis for appeal. From the position of the claimant and its solicitors, there had been no settlement with all four defendants. The correspondence did not establish that the claimant had agreed to settle independently with the Containerised Storage Company, nor did it show a concluded agreement on which the costs order could be challenged.
3. The order for costs was a proper exercise of the judge’s discretion. The proceedings had been properly brought against all four defendants. They made common cause, appeared through the same counsel and had the same solicitors on the record. In those circumstances, the joint and several costs order was obvious, and there was no basis for appellate interference.
4. The court was entitled to proceed despite the applicants’ absence. Each had been given an opportunity to attend. Dr Adoko could not represent Boxer on the material before the court, had supplied no written statement required by CPR 39, and no reason was shown why another representative could not attend.

The applications contained no real prospect that appeals would succeed. Permission to appeal was therefore refused in all three applications.

• Court of Appeal (Civil Division) — On 7 December 2001, Lord Justice Chadwick refused permission to appeal in three applications.
• Chancery Division — Pumfrey J granted declarations concerning title and the right of way following an application under CPR Part 24, and ordered the four defendants to pay the claimant’s costs, including £16,000 on account.