Alexander & Co v Glazier

Permission to appeal should be refused where the proposed grounds disclose no realistic prospect of success. A clear factual finding will not realistically be disturbed where the challenge rests on speculation or conjecture about what might have happened. Complaints about deficient billing, delayed accounts, inaccurate estimates or unsatisfactory conduct by solicitors do not themselves reduce a costs liability or establish a damages claim. The applicant must show causally connected further loss. Sympathy for a litigant in person and the strain of prolonged litigation cannot replace proof of a legally recoverable loss.

Alexander & Co, the applicant’s former solicitors, obtained judgment in the Birmingham County Court for £4,826 in unpaid costs. The underlying litigation concerned alleged encroachment and obstruction of a right of way. The county court reduced the solicitors’ claim substantially, including because of an impermissibly substituted bill, uncredited payments and an unexplained costs order.

Mr Glazier sought permission to appeal, alleging failures in the conduct of the original litigation and the subsequent costs claim. The central question was whether any proposed ground had a realistic prospect of success or could justify a further reduction or damages.

Disposition

Mr Justice Sumner concluded that there was no realistic prospect of success and dismissed the application for permission to appeal. Lady Justice Arden agreed.

1. The county judge had made clear findings on the disputed costs issues and had already reduced the solicitors’ claim from more than £12,000 to £4,826. The Court of Appeal found no realistic basis for disturbing that assessment.
2. The complaint that the opposing solicitors’ prior involvement had prolonged the litigation depended on speculation about what would have occurred had another firm acted. That did not undermine the county judge’s factual finding or disclose an appealable error.
3. The trial judge’s disclosure that he knew counsel involved in the earlier proceedings was proper. It gave the parties an opportunity to seek a different judge if criticism of counsel was likely. No such criticism was made, no disadvantage was shown, and the applicant had accepted the arrangement at the time.
4. The solicitors’ deficient accounts, failure to keep the applicant informed of costs and attempt to substitute a larger bill could properly be criticised. However, even if established, those matters did not cause further compensable loss. The county judge had allowed appropriate credits and reductions.
5. The strain of prolonged litigation and the difficulty of defending an inadequately presented costs claim did not create a further claim for damages, particularly as no such damages claim had been advanced before the county judge.

Order: application for permission to appeal refused.

• Court of Appeal (Civil Division) — On 8 May 2001, dismissed the application for permission to appeal. [2001] EWCA Civ 897
• Birmingham County Court — On 10 November 2000, His Honour Judge Alan Taylor entered judgment for Alexander & Co for £4,826 in unpaid costs.