Watson v Perotti

On an application for permission to appeal, the Court of Appeal considers whether there is an arguable appeal from a decision on a point actually decided below. It will not entertain attempts to reopen earlier orders, costs assessments or charging orders, or to raise complaints that were not determined by the judge. A challenge to a time-limited direction may be pointless once the relevant period has expired, particularly where no error or unreasonableness is shown. An order requiring one litigant to pay another’s copying costs does not transfer ownership of the copied documents. The Convention does not confer an unqualified right to legal assistance in every case, although that observation was unnecessary to the application.

The claimant had obtained substantial costs orders and charging orders over two leasehold properties in the defendant’s name. A Master vested terms in the claimant to facilitate their sale, with conduct of the sales entrusted to the claimant’s solicitors. The defendant then applied to Etherton J for rulings concerning the choice of estate agent, the property’s lease term, and copies of documents for which he had paid copying costs. The judge declined to interfere with the temporary sole-agency arrangement, directed evidence concerning the lease term, and held that payment of copying costs did not confer ownership of the documents. The defendant sought permission to appeal and raised further challenges to the costs and charging orders, lawyers’ duties and the absence of legal assistance.

Application refused. Lord Justice Peter Gibson held:

1. The function of the Court of Appeal on an application for permission to appeal is to determine whether an appeal from the lower court on a point decided by that court should be allowed to proceed.
2. The proposed grounds could not extend the appeal beyond the judge’s order. Complaints about the Master’s earlier order, the conduct of the sale, the entitlement to recover copying costs, and the charging orders were either matters not decided by Etherton J or attempts to reopen matters that could no longer properly be challenged. Evidence filed pursuant to the judge’s direction about the lease term was not itself a ground of appeal because the direction was not challenged.
3. The challenge to the temporary sole-agency arrangement was pointless by the time of the application because the relevant period had expired. In any event, the decision was plainly sensible and there was no evidence that the solicitors’ initial appointment of a reputable sole agent was unreasonable.
4. An order requiring a litigant to pay another party’s costs, including photocopying disbursements, does not operate as a compulsory purchase of the documents and does not give the paying litigant ownership rights in them.
5. The proposed question concerning lawyers’ duties to the court was irrelevant because the judge had decided no issue on it. The observation that the European Convention on Human Rights did not confer an unqualified right to legal assistance in every circumstance was unnecessary to the decision.

Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal from the order of Etherton J in the Chancery Division dated 7 September 2002 was refused.