Clieve-Roberts v Marryat (Richmond) Ltd

The grant or refusal of relief from an automatic stay is a discretionary case-management decision governed by rule 3.9 of the Civil Procedure Rules 1998. The court must consider the prescribed factors, the interests of both parties and the overriding objective. On a costs appeal, the appellate court will intervene only where the judge misdirected himself, considered irrelevant matters, omitted relevant matters, or reached a plainly impermissible conclusion. The general rule that the unsuccessful party pays the successful party’s costs may be varied. The court may award only a proportion of those costs after weighing the parties’ conduct, including unreasonable resistance to liability and conduct contributing to delay.

The applicant sought permission to appeal from an order of His Honour Judge Holman in the Central London County Court. The underlying claim concerned antique items said to have been lost while in the respondent’s custody. The claim had been automatically stayed under paragraph 19 of the Practice Direction to Part 51 of the Civil Procedure Rules 1998 and was ultimately dismissed when the stay was left in place. The applicant did not challenge that decision or the dismissal of the claim, but appealed against the order that she pay one-half of the respondent’s costs. The central issue was whether the judge had erred in exercising his costs discretion.

1. Application dismissed. The applicant had no realistic prospect of successfully appealing the costs order.
2. The judge correctly directed himself that the automatic stay was a sanction and that rule 3.9 of the Civil Procedure Rules 1998 governed relief from it. He considered the relevant factors, the overriding objective and the effect of delay on the possibility of a fair trial. The applicant did not challenge that underlying decision.
3. The judge also correctly recognised that rule 44.3 established a general rule that the unsuccessful party pays the successful party’s costs, while conferring a discretion to make a different order. That discretion included awarding only a proportion of the successful party’s costs.
4. The judge was entitled to reduce the respondent’s recoverable costs because it had failed to concede liability at an early stage, had maintained a denial of liability despite its position as bailee, and had contributed to the correspondence and antagonism. He was also entitled to take account of the applicant’s intemperate correspondence, unsupported allegations and failure to progress the claim adequately.
5. The judge had considered relevant matters, omitted no material consideration and relied on no irrelevant consideration. The applicant could challenge unreasonable or disproportionate individual items at detailed assessment.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal against the costs order made by His Honour Judge Holman in the Central London County Court.
• Central London County Court: left the automatic stay in place, dismissed the claim and ordered the applicant to pay one-half of the respondent’s costs.