Daly & Anor v Sheikh

An interlocutory court may refuse an interim costs payment where a permission application or appeal is due to be heard shortly, the sums are not substantial, and the parties’ financial positions remain disputed. Under paragraph 5.15 of the Civil Procedure Rules, relevant evidence must generally be transcribed for an appeal, but transcripts are usually unnecessary for a permission application. The court retains a discretion whether to order transcripts at that stage, having regard to delay, conduct, the possibility that permission will be refused, and the discretion of the eventual appeal court.

A preliminary issue had been tried in the Queen’s Bench Division before Mr Justice Gray. A costs order required the claimants to pay two-thirds of the defendant’s costs, reflecting the judge’s criticisms of the defendant’s conduct. The claimants sought permission to appeal.

Chadwick LJ adjourned the permission application to be heard as an opposed application, stayed enforcement of the costs order and permitted the defendant to apply to vary the costs order. The defendant then sought removal of the stay, an interim payment of costs, and an order requiring the claimants to provide transcripts of the oral evidence, failing which the appeal should be dismissed. The central issue was whether those orders should be made before the permission application was heard by the full court.

Lord Justice Schiemann dismissed the applications.

1. Interim costs payment. The court declined to order an interim payment. The permission application was due to be heard by the full court within approximately five weeks, and the amounts involved were not enormous. The parties’ financial positions were disputed, as was the location of assets which might be required to meet liabilities to the Revenue. In those circumstances, an interim order was not appropriate in the exercise of the court’s discretion.
2. Transcripts. Paragraph 5.15 of the Civil Procedure Rules provided that an official transcript of relevant evidence must be obtained where the evidence was relevant to an appeal. Transcripts or notes were generally unnecessary for determining an application for permission to appeal. If permission were granted and the matter proceeded as an appeal, the claimants would in principle have to provide the necessary transcripts.
3. Discretion at the permission stage. The court nevertheless declined to order the claimants to obtain transcripts immediately. It took account of the time already elapsed, the defendant’s conduct generally, the possibility that permission might be refused, and the discretion which would remain with the court hearing any eventual appeal. The defendant was not prevented from trying to obtain the transcripts himself, although the lateness of the request might make this difficult.
4. Final order. The applications were dismissed. The defendant was ordered to pay the costs of the application, with the method of assessment adjourned to the full court.

1. Court of Appeal (Civil Division) — On 19 September 2002, Schiemann LJ dismissed the defendant’s applications. [2002] EWCA Civ 1419
2. Court of Appeal (Civil Division) — On 7 May 2002, Chadwick LJ adjourned the claimants’ application for permission to appeal for an opposed hearing, stayed enforcement of the costs order and permitted the defendant to apply to set aside the costs element.
3. Queen’s Bench Division — Mr Justice Gray tried the preliminary issue and made the costs order requiring the claimants to pay two-thirds of the defendant’s costs.