Dinglis & Ors (t/a Dinglis Property Services) v Fatollahy

On a second appeal, permission requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. Costs remain within the lower court’s discretion, and appellate intervention is justified only where the decision was plainly wrong. A party abandoning proceedings will normally bear the defendant’s costs, absent very special circumstances. Deliberate non-compliance with an unless order may also justify refusing reinstatement.

The claimants’ original possession proceedings included a claim for rent arrears. After the defendant set aside a suspended possession order and entered a defence, the claimants deliberately failed to comply with an unless order, allowing the proceedings to be struck out. They then obtained possession through fresh accelerated proceedings, which did not permit a claim for arrears.

The deputy district judge awarded the defendant the costs of the original proceedings. His Honour Judge Reid upheld that decision on appeal. The claimants applied to the Court of Appeal for permission to bring a second appeal. The central issue was whether the proposed appeal satisfied the statutory and procedural threshold for a second appeal.

Lord Justice Henry, giving the judgment of the Court of Appeal, dismissed the application for permission to appeal.

1. Second appeal threshold. Under section 55 of the Access to Justice Act and CPR Part 52.13, permission for a second appeal should be granted only where the proposed appeal raises an important point of principle or practice, or where there is some other compelling reason for the Court of Appeal to hear it. The proposed appeal met neither requirement.
2. Costs discretion. Costs are a matter for the discretion of the judge below. The Court of Appeal will intervene only where that discretion has been exercised in a plainly wrong manner. The deputy district judge had made the ordinary costs order following abandonment of the claim, and the circuit judge had correctly upheld it.
3. Abandoned proceedings. Where a claimant abandons litigation without an agreement or other special arrangement concerning costs, the defendant will normally receive the costs of the abandoned claims. The claimants had effectively abandoned the arrears claim when they pursued possession by the accelerated procedure, which did not provide a route to recover those arrears.
4. Deliberate non-compliance. The refusal to reinstate the original proceedings was not shown to involve an improper exercise of discretion. The claimants had deliberately ignored the unless order, and a substantial period had elapsed. Alternative procedural courses had been available to them.

The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): Permission for a second appeal was refused. [2001] EWCA Civ 541
• Clerkenwell County Court: His Honour Judge Reid upheld the deputy district judge’s costs order on 12 May 2000.
• Clerkenwell County Court: Deputy District Judge Whitaker awarded the defendant the costs of the original possession proceedings on 20 March 2000.