Musa v Wickes Building Supplies Ltd

On a second appeal, permission should be refused where the proposed appeal has no prospect of success and raises no point of general public importance. A costs order made because a party filed a defective pleading is not rendered erroneous merely because solicitors failed to place mitigating circumstances before the costs decision-maker. Alleged professional fault is a separate matter. If enforcement is sought, the applicant’s financial means may then be considered when deciding how the costs should be paid. Permission should not be granted where the appeal would only generate further costs and is bound to fail.

Master Foster ordered the applicant to pay the costs occasioned by amending defective pleadings following the defendants’ strike-out application. Bell J dismissed the applicant’s appeal against that order on 29 March 2001. The applicant then sought permission for a second appeal, alleging that his former solicitors had failed to put relevant circumstances before Master Foster and relying on his limited means and the risk to his home. The central issue was whether there was any sufficient basis to permit the proposed second appeal.

Application refused. Kay LJ held that the proposed appeal had no prospect of success and that no point of general public importance was involved. The restricted circumstances applicable to a second appeal therefore provided no basis for permission.

1. The pleadings had been defective and required amendment. The costs occasioned by that amendment were properly payable by the applicant if he wished to proceed with his claim. Nothing material had been placed before Master Foster to justify a different order, and there was no reason to think that additional material could have altered the result.
2. The complaint that the applicant’s solicitors had failed to present relevant circumstances was a complaint about the solicitors’ conduct. It did not establish that the Master’s order was defective. The court made no finding on whether the solicitors were at fault, but noted that the applicant might have remedies against them.
3. The applicant’s financial position did not justify permission. Enforcement of the costs order had not been considered, and any enforcement court could take his means into account and decide appropriate arrangements for payment. He might also discharge the liability if he ultimately succeeded in the underlying proceedings.
4. Granting permission would expose the respondents to further costs which would inevitably fall on the applicant, while the proposed appeal was bound to fail. Permission to appeal was refused.

1. Court of Appeal (Civil Division): Kay LJ refused permission for a second appeal on 19 June 2001.
2. High Court, Queen’s Bench Division: Bell J dismissed the applicant’s appeal against Master Foster’s costs order on 29 March 2001.
3. Master Foster: Following the defendants’ strike-out application, ordered the applicant to pay the costs occasioned by amendment of defective pleadings.