Dooley v Parker & Anor

At the permission stage, an appeal should proceed where the proposed challenge raises a real prospect of success. A costs challenge may meet that threshold where an order effectively leaving each side to bear its own costs is arguably wrong, despite the lower court’s concerns about apportionment, negotiations and benefits obtained by both parties. Permission does not determine the merits of the costs appeal.

The underlying proceedings concerned a disputed right of way and an asserted right to park. The claimant abandoned the parking issue before trial. The parties settled the right-of-way issue at the trial hearing, but could not agree costs.

District Judge Ewing made an order which effectively left the parties to bear their own costs, taking account of the complexity of allocating costs between the issues, the negotiations, the claimant’s legal aid and benefits obtained by the defendants. The claimant applied to the Court of Appeal for permission to appeal, arguing that the costs order was clearly wrong.

1. Permission to appeal. Lord Justice Brooke considered that the claimant’s concise argument raised a real prospect of success. The proposed appeal challenged the effective no-order-as-to-costs outcome where the claimant maintained that she had pursued the proceedings to the court door and achieved the object of the action only at that stage.
2. Opposing submissions. Lord Justice Sedley agreed that this was a proper case for permission. The respondents’ written submissions, although considered, were not conclusive at the permission stage.
3. Wider observation. Brooke LJ encouraged consideration of alternative dispute resolution or mediation. He observed that the costs in issue were comparatively small and that a contested appeal could make the costs disproportionate.
4. Order. The application was allowed and permission to appeal was granted. The costs of the application were made costs in the appeal. The applicant’s costs were subject to public-funding assessment, and the appeal was to be listed before a three-judge court, one member of which could be a High Court judge.

• Court of Appeal (Civil Division): On 7 February 2002, granted permission to appeal against the costs order made below. The merits of the costs appeal were not determined.
• Wrexham County Court: District Judge Ewing made the costs order on 31 May 2001, effectively leaving the parties to bear their own costs.