Carroll v Bank Of India & Anor

A Court of Appeal will not interfere with a first-instance judge’s discretionary costs order without a proper ground for doing so. In deciding costs after proceedings are discontinued, the judge may consider the claimant’s actual objective, whether the proceedings were necessary, and whether other actors acted reasonably in dealing with disputed property. An indemnity-basis costs order is likewise a discretionary decision. Material that was available at the first hearing cannot ordinarily be introduced on appeal. A party cannot generally challenge on appeal a course consciously adopted by legal advisers at the hearing below.

The claimant sought renewed permission to appeal against costs orders made by Mr Michael Spencer QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division, on 13 October 2000. The orders followed the discontinuance of proceedings concerning goods and documents left at premises from which the claimant had been evicted pursuant to possession proceedings.

The Deputy Judge ordered the claimant to pay the defendants’ costs, including on an indemnity basis. He found that the proceedings had been unnecessary and that the receiver and solicitors had been justified in proceeding cautiously because ownership of the property was disputed. The claimant challenged the treatment of a freezing order, the conduct of the proceedings, the exclusion of correspondence available below, and the representation provided at the costs hearing. The central issue was whether any proper ground existed for interfering with the Deputy Judge’s discretionary decisions.

Both applications for permission to appeal were refused. Lord Justice Buxton held that no ground had been shown for interfering with the orders made by Mr Spencer QC.

1. Correspondence which had been available when the matter was dealt with below could not be introduced on the proposed appeal. The renewed application had to be considered on the proper appellate basis.
2. In determining costs after proceedings have been discontinued, the first-instance judge may examine the claimant’s real objective and whether the proceedings were necessary. The Deputy Judge had found, separately, that the claimant had not achieved the objective associated with the freezing order and that proceedings were unnecessary because the receiver and the defendants’ solicitors would properly deal with property to which the claimant was entitled.
3. The Deputy Judge was entitled to regard the receiver’s cautious approach as justified. Ownership was uncertain and competing claims had been made by several persons. That assessment formed part of the judge’s discretion and was not one which the Court of Appeal would go behind.
4. The order for costs on an indemnity basis was also a matter for the Deputy Judge’s judgment. No basis for appellate interference was established.
5. The freezing-order proceedings had been raised in response to the claimant’s complaint that the documents had been used improperly. The defendants were entitled to explain that issue. The Deputy Judge had not decided the case by making a finding about the claimant’s honesty. Any complaint about the way the claimant’s case had been presented below could not properly be raised after that course had been consciously adopted by his legal advisers.

The formal order was: applications refused.

• Court of Appeal (Civil Division): on 26 January 2001, the renewed applications for permission to appeal were refused: [2001] EWCA Civ 57.
• Queen’s Bench Division: Mr Michael Spencer QC, sitting as a Deputy High Court Judge, made the challenged costs orders on 13 October 2000 following discontinuance of the claimant’s proceedings.