Abdelfattah v Kindvital Ltd

Permission for a second appeal is available only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. Failure to serve a costs statement at least 24 hours before a hearing does not automatically require an order that no costs be paid. The court must exercise its discretion, consider the default and any reasonable excuse, and assess whether the proposed costs consequence is proportionate. A lower court errs in principle if it moves directly from procedural default to depriving a successful party of all costs. A separate technical defect in the claim does not justify that outcome.

The applicant claimed re-entry and removal of fixtures and fittings after forfeiture of a lease granted by Kindvital Ltd to a company which he appeared to own and control. The claim was struck out because it was brought in the applicant’s name, although he was only a guarantor and not the tenant.

The Deputy District Judge made no order as to costs because the respondent had not served a costs schedule at least 24 hours before the hearing. On 7 December 2000, His Honour Judge Appleton allowed the respondent’s appeal on costs and awarded costs. The applicant sought permission for a second appeal and an extension of time. The central issues were whether the costs discretion had been properly exercised and whether the threshold in Civil Procedure Rules Part 52.13 was met.

Lord Justice Mance dealt with the application in the applicant’s absence. The application for permission to bring a second appeal failed, and no extension of time was granted.

1. Under Civil Procedure Rules Part 52.13, permission for a second appeal could be given only if the appeal would raise an important point of principle or practice, or if there was some other compelling reason for the Court of Appeal to hear it. The proposed appeal met neither requirement.
2. The requirement in Practice Direction 44 paragraph 13.5(4) to file and serve a costs statement at least 24 hours before the hearing was relevant to the costs decision. Under paragraph 13.6, non-compliance was to be taken into account and the judge might disallow costs, but the provision did not require an order that no costs be paid.
3. The general costs rule and the need to deal with the matter proportionately remained relevant. The Deputy District Judge had erred in principle by proceeding from the bare fact of late service directly to a conclusion that no costs should follow, without undertaking the necessary discretionary assessment. The circuit judge was therefore entitled and bound to re-exercise the discretion.
4. The circuit judge had relied on relevant and sound reasons, including the fact that the costs schedule had been posted two days before the hearing and that late service did not necessarily justify depriving the successful defendant of all costs. The Court of Appeal would not interfere merely because it might have reached a different discretionary conclusion.
5. The technical ground on which the claim had been struck out and the separate default concerning service of the costs schedule were unconnected. The former did not justify giving decisive weight to the latter. The order was therefore left undisturbed. Application refused.

• Court of Appeal (Civil Division) In [2001] EWCA Civ 765, permission for a second appeal was refused. The proposed appeal did not raise an important point of principle or practice and there was no other compelling reason for a hearing.
• Preston County Court On 7 December 2000, His Honour Judge Appleton allowed Kindvital Ltd’s appeal against the costs element of the earlier order and awarded costs, subject to detailed assessment if not agreed.
• Preston County Court On 6 October 2000, Deputy District Judge Haddleton struck out the claim and made no order as to costs because the costs schedule had not been served at least 24 hours before the hearing.