Goldman v Lee & Anor

Where Access to Justice Act 1999, section 54(4), prevents a challenge on the merits, a distinct challenge to a costs order may still be pursued. The applicant must show an arguable error of principle or that the judge was plainly wrong. It is insufficient that costs are unusual on a permission application, that another judge might have exercised the discretion differently, or that an administrative letter says respondents will not usually receive costs. Permission should be refused where the proposed appeal has no real prospect of success and no other compelling reason supports a hearing.

The claimant’s defamation claim against the respondents was struck out by Master Tennant under section 8 of the Defamation Act 1996. Permission to appeal was refused. On 7 December 2001, Gray J also refused permission and ordered the claimant to pay the respondents’ costs.

The claimant applied to the Court of Appeal for permission to appeal out of time. He accepted that section 54(4) of the Access to Justice Act 1999 prevented a challenge to the merits, but argued that the costs order was wrong. The central issue was whether Gray J had erred in principle or was plainly wrong in exercising his discretion to award costs.

1. The short delay in lodging the notice of appeal was not held against the claimant. The explanation concerned the late receipt of documents relating to fee remission, and the delay occurred over the holiday period.
2. Section 54(4) of the Access to Justice Act 1999 prevented the claimant from seeking permission to appeal on grounds concerning the substance of the defamation claim. That limitation did not exclude a challenge to the separate costs order.
3. On an application concerning a discretionary costs order, the applicant had to show an arguable error of principle or that the judge was plainly wrong. The fact that costs orders were unusual on permission applications did not remove the judge’s discretion. A standard Civil Appeals Office letter stating that respondents would not usually receive costs was not a rule or practice direction and did not restrict that discretion.
4. Gray J had been aware of the unusual nature of the order, the respondents’ reasons for attending with counsel, and the history of the proceedings. He was best placed to decide whether costs should be awarded. The possibility that other judges might have reached a different conclusion did not establish appellate error.
5. The claimant therefore had no real prospect of successfully challenging the costs order. No other compelling reason or major point of principle justified an appeal hearing. The application for permission to appeal out of time was dismissed.

1. Court of Appeal (Civil Division): dismissed the claimant’s application for permission to appeal out of time, including the challenge to the costs order: [2002] EWCA Civ 445.
2. Queen’s Bench Division: Gray J refused permission to appeal on 7 December 2001 and ordered the claimant to pay the respondents’ costs.
3. Master Tennant: struck out the defamation claim under section 8 of the Defamation Act 1996 and refused permission to appeal.