Mahood & Anor v Penrose & Anor

On an application for permission to appeal against a costs order, the court should obtain further information before deciding the application where the figure cannot be reconciled with the material presently available. The relevant inquiry must be confined to the costs properly within the order under challenge. Allegations concerning unrelated conduct of the action or the trial do not assist. A party who deliberately failed to attend the costs hearing cannot criticise the judge for failing to consider matters that could have been raised there.

The claimants applied for permission to appeal against a costs order made after their claim was withdrawn during trial and the defendants succeeded on their counterclaim. The disputed sum included costs relating to an earlier application to adjourn the trial and the trial bundle. The adjournment application had been allowed on terms that the claimants pay costs, with some costs reserved for the trial judge.

The Court of Appeal was unable to reconcile the sum of £4,623.63 with the documents and transcript available. The central issue was whether the court should determine permission immediately or obtain clarification and supporting documents concerning the assessment.

Lord Justice Mance stood over the application for permission to appeal pending further enquiries.

1. The documents before the court did not explain how the figure of £4,623.63 had been calculated. The figures apparently identifiable from the bundle were materially lower. The proper course was therefore to invite the respondents to explain the calculation and produce any relevant documents before deciding the application.
2. The respondents were to be given 14 days after receipt of the court’s letter to provide comments and documents. The claimants were then to have a further 14 days to respond. The court might thereafter decide the matter on paper, relist it for an oral hearing, or list it immediately for further argument.
3. The court reserved its conclusion on the claimants’ wider challenge to the reasonableness of the costs and to summary assessment. That issue could not sensibly be determined without seeing the material relied upon by the trial judge.
4. The relevant challenge concerned the costs of the 22 September adjournment application and the trial bundle. Complaints about earlier conduct of the action or the conduct of the trial were irrelevant to that issue. The claimants had chosen not to attend when the costs were dealt with and could not blame the judge for failing to consider matters they could have raised.

Order: application for permission to appeal adjourned pending further enquiries.

• Court of Appeal (Civil Division): The application for permission to appeal was stood over pending clarification of the costs calculation and further documents.
• Central London County Court: His Honour Judge Knight QC made a costs order following the claimants’ withdrawal during trial, the defendants’ success on their counterclaim, and the earlier adjournment application.
• Miss Recorder Worrall QC: The trial was adjourned on 22 September 2000 on terms that the claimants pay costs, with specified costs reserved for the trial judge.