Ogle v Rowberry Morris (A Firm)

An application to reinstate an application for permission to appeal should be granted only where the proposed appeal has a reasonable prospect of success. That requirement applies even where the applicant’s failure to comply with a procedural order resulted from illness or other circumstances attracting the court’s indulgence. A second-tier appeal requires an important point of principle or practice, or some other compelling reason, under Access to Justice Act 1999, section 55. A wasted-costs claim against legal representatives must be made in the proceedings in which the costs were allegedly wasted, rather than by a separate action.

Mr Ogle applied in person to reinstate an application for permission to appeal after it had been struck out because he failed to lodge the required bundle. The failure occurred while he was suffering from anxiety and depression.

The proposed appeal arose from Evans-Lombe J’s dismissal of an appeal against Master Bragge’s orders striking out four actions against Rowberry Morris. The actions concerned alleged malicious falsehood, removal of chattels and delay in payment, a separate wasted-costs claim, and damages arising from a solicitor’s visit to Mr Ogle’s flat. The central issue was whether reinstatement would serve any purpose given the prospects and statutory test governing a second appeal.

1. The application was dismissed. The court accepted that Mr Ogle’s illness provided grounds for indulgence in considering reinstatement. That indulgence was conditional upon the proposed appeal having a reasonable prospect of success.
2. The proposed appeal would be a second-tier appeal. Under section 55 of the Access to Justice Act 1999, such an appeal is permissible only if it raises an important point of principle or practice, or there is some other compelling reason. The application did not satisfy that stringent test, so reinstatement would achieve nothing.
3. Subject to the issue concerning £4,000, the court agreed with Evans-Lombe J that Master Bragge had correctly struck out the claims as having no prospect of success. The £4,000 obligation arose under a consent order and was an obligation of Mrs Bell, not of her solicitors. The claim therefore remained difficult to sustain against Rowberry Morris.
4. A claim seeking wasted costs against solicitors or counsel is to be made in the proceedings in which the costs were allegedly wasted. It cannot be brought as a separate cause of action to recover costs arising from earlier proceedings. This conclusion was based on the jurisdiction described by the lower court and on Rule 48.7.1 of the Civil Procedure Rules 1998.
5. The earlier Grepe v Loam jurisdiction was described as an inherent jurisdiction to restrain repeated applications in the same or related proceedings. That background did not affect the conclusion on reinstatement.

Application dismissed; no order for costs.

• Court of Appeal (Civil Division): application to reinstate permission application dismissed under [2001] EWCA Civ 672.
• Chancery Division: Evans-Lombe J dismissed Mr Ogle’s appeal from Master Bragge’s orders striking out four actions.
• Master Bragge: four actions against Rowberry Morris were struck out.