Clegg & Anor v Guarino

On a second appeal, permission requires either an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case.

A challenge to the exercise of a judge’s discretion on costs will ordinarily involve the application of established principles to the facts. The possibility that another judge might have reached a different result does not satisfy that threshold. Where the proposed point is already well established and no compelling reason exists, permission should be refused.

The applicants had succeeded in proceedings concerning the administration of an estate and alleged that the executrix had attempted to sell its principal asset at an undervalue. The first-instance court ordered an account and awarded the applicants their action costs, but directed that half of the administration solicitors’ costs should be borne by the estate.

Blackburne J dismissed the applicants’ appeal against that costs direction on 17 May 2001. The applicants sought permission to bring a second appeal, arguing that the costs should have been borne by the executrix because of her alleged impropriety. The central question was whether the proposed appeal met the requirements of CPR 52.13.

The application for permission to appeal was dismissed. The short delay in filing the appellants’ notice was not held against them.

1. Under Rule 52.13 of the Civil Procedure Rules 1998, the Court of Appeal could grant permission only if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason for the court to hear it.
2. The applicants’ suggested principle—that the estate required protection from the trustee’s conduct—was well established. The real issue was the exercise of the judge’s discretion in deciding how the administration costs should be allocated.
3. Costs were within the judge’s discretion. Although the Court of Appeal might, on a different analysis of the facts and submissions, have reached another decision, that possibility did not convert the discretionary costs issue into an important point of principle or practice.
4. There was no other compelling reason to hear the proposed second appeal. The application was therefore dismissed.

1. Court of Appeal (Civil Division): On 16 July 2002, Lord Justice Aldous dismissed the application for permission to bring a second appeal in Clegg & Anor v Guarino [2002] EWCA Civ 1121.
2. High Court, Chancery Division: Blackburne J dismissed the applicants’ appeal against the costs order on 17 May 2001.
3. First-instance proceedings: His Honour Judge Walker directed on 17 November 2000 that half of the administration solicitors’ costs should be borne by the estate.