Cullen & Anor v MP Cullen, Trustee In Bankruptcy Of

Where parties have agreed to relist a substantive appeal for a full-day hearing, representatives should not assume that the appeal will proceed merely because it remains in the list. This is particularly important where the opposing parties are litigants in person and the respondent is a trustee in bankruptcy responsible for estate costs. Reasonable steps should be taken to verify the effective listing and any agreed adjournment. A costs order against the litigants in person may be set aside where confusion arose from that agreement and the respondent’s attendance was wasted.

Mrs and Mr Cullen, appearing as litigants in person, sought permission to appeal against an order made by Mr Peter Smith QC, sitting as a deputy judge of the High Court in the Chancery Division. The order required them to pay the trustee in bankruptcy’s costs of a hearing, summarily assessed at £2,079.75.

The hearing had been listed for appeals concerning an order for the sale of the Cullens’ home and the provision of hearing transcripts. Correspondence between Mrs Cullen and the trustee’s solicitors confirmed consent to relist the substantive appeal for a full-day hearing. The central issue was whether the costs order should stand when the appellants reasonably understood that the substantive appeal had been adjourned.

Disposition

1. Per Lord Justice Chadwick, with Lady Justice Hale agreeing, permission to appeal was granted and the appeal was allowed. The costs order of 5 July 2001 was set aside.
2. The trustee’s attendance at the hearing had been wasted. Mr and Mrs Cullen were not required to pay those costs. Costs incurred in the High Court appeal that were not wasted by the attendance on 5 July remained to be dealt with in due course as costs in that appeal.

Reasoning

1. The correspondence showed that the substantive appeal was to be relisted for a full day. The court office had indicated that the transcript issue could be dealt with separately, and the trustee’s solicitors expressly consented to relisting the hearing.
2. The later provision of an approved note of the district judge’s judgment did not resolve the separate question whether the substantive appeal would proceed on 5 July. It did not displace the agreement to seek a full-day hearing.
3. Solicitors acting for a trustee in bankruptcy should not simply assume that a listed matter will proceed where correspondence records an agreement to adjourn or relist. When dealing with litigants in person, they should make reasonable efforts to establish what is intended. That duty is reinforced by the need to protect the bankrupt’s estate from unnecessary costs.
4. A telephone call or fax to the court or Mrs Cullen would have clarified the position. In the circumstances, Mrs Cullen had a real and sustainable grievance about being ordered to pay the costs, particularly as the relevant matters may not have been fully before the deputy judge.

The order was therefore set aside. The trustee was ordered to pay the Cullens’ costs of the Court of Appeal attendance, summarily assessed at £25.

• Court of Appeal (Civil Division): Permission granted and appeal allowed. The costs order was set aside, with the trustee ordered to pay £25 for the appellants’ attendance.
• High Court (Chancery Division): On 5 July 2001, Mr Peter Smith QC sitting as a deputy judge directed Mr and Mrs Cullen to pay the costs of the hearing, summarily assessed at £2,079.75.