Faryab v Philip Ross & Co (A Firm)

An interlocutory appeal concerning discovery will ordinarily serve no useful purpose once the substantive action has been tried and determined. Permission to appeal against a costs order arising from a judge’s discretionary case-management decision is granted only where there is a genuine point of principle. A complaint that an order was made without reasons cannot succeed where the judge has subsequently provided a clear explanation of the decision.

The applicant sought permission to appeal against parts of an interlocutory discovery and costs order made by Hunt J in proceedings against Philip Ross & Co. He argued that the order had been made without a reasoned judgment, contrary to common law and article 6 of the ECHR, and that the costs order was irrational.

After the interlocutory order, Hunt J supplied written reasons. The substantive action was then tried for 14 days before Stanley Burnton J, who dismissed the applicant’s claim in a reserved judgment dated 11 July 2002. The central issues were whether any useful interlocutory appeal remained and whether the costs order raised a sufficient point of principle.

1. Application refused. The application for permission to appeal was wholly misconceived.
2. The complaint that Hunt J had made the order without reasons was unsustainable. His written communication of 2 May 2002 explained the disclosure decisions and the basis for awarding costs. It recorded that some requests were irrelevant or speculative, that privilege applied to certain documents, and that other matters had been addressed by disclosure, statements or undertakings.
3. Once the substantive action had been heard and determined, an interlocutory appeal against refusal of further specific discovery had become entirely academic. The trial had lasted 14 days and had resulted in the applicant’s comprehensive defeat. The Court of Appeal would not entertain such an appeal or attempt to combine it with a proposed appeal from the substantive judgment.
4. As to costs, the judge had a very wide discretion. The Court of Appeal almost never granted permission to appeal against its exercise unless the case raised a genuine point of principle. This case came nowhere near satisfying that threshold. The costs order was, if anything, indulgent towards the applicant.

• High Court, Queen’s Bench Division: Hunt J made an interlocutory order concerning specific disclosure and costs on 29 April 2002. The substantive action was subsequently tried before Stanley Burnton J, who gave a reserved judgment on 11 July 2002 and dismissed the applicant’s claim.
• Court of Appeal (Civil Division): Permission to appeal against the interlocutory order was refused.