Sayers v Clarke Walker (A Firm)

In costs disputes arising from permission-to-appeal and extension-of-time applications, the court may adopt the broad-brush approach encouraged by Civil Procedure Rules 1998, rule 44.3. Costs should reflect the overall outcome, while allowing for success on particular issues. Proportionality remains important, especially in ancillary skirmishes. Solicitors should control the evidence, written submissions and advocacy they deploy, since costs incurred may not be recoverable. Excessive costs may be reduced or disallowed on detailed assessment.

The defendants appealed from a judgment of Mr Justice Buckley and sought an extension of time and permission to appeal. Following earlier procedural hearings, the Court of Appeal granted the extension but refused permission to appeal. The parties then disputed the costs of those ancillary proceedings.

The claimant argued that the result was a draw. The defendants sought their costs. The issues were the appropriate allocation of costs and whether the parties’ expenditure was proportionate.

1. Application refused. The claimant was awarded three quarters of the appropriate costs.
2. The broad-brush approach encouraged by Civil Procedure Rules 1998, rule 44.3, was appropriate. The defendants had succeeded on the extension-of-time issue but lost on permission to appeal. The claimant’s costs were reduced because the defendants ultimately obtained the extension.
3. Proportionality was a separate and important consideration. Solicitors should control costs incurred in ancillary permission-to-appeal proceedings, particularly where recovery from the opposing party is uncertain.
4. Costs incurred after the first judgment were disallowed where further submissions or attendance were unnecessary. Excessive evidence, a lengthy skeleton argument and extensive authorities were matters for the costs judge on detailed assessment.

• Court of Appeal (Civil Division): Following judgment by Mr Justice Buckley in the Queen’s Bench Division, the Court of Appeal granted an extension of time but refused permission to appeal, then determined the consequential costs issues.
• Earlier Court of Appeal decisions: The judgment refers to decisions dated 14 May 2002, 2002 EWCA Civ 645, and 26 June 2002, 2002 EWCA Civ 910.