Russell & Anor v Sheen

Where an uncompleted application for permission to appeal is withdrawn and the applicant promptly changes position, the Court of Appeal may relist the application. The applicant may be ordered to pay costs wasted by the intervening change of position.

Preparation costs incurred while the withdrawal was being acted upon may be awarded immediately. Costs of the permission application itself, and attendance costs that could have been avoided by agreement, may be reserved as costs in the application.

The applicants had appealed from an order of Jacob J dated 16 July 2001, which had dismissed their appeal against an order made by His Honour Judge Reynolds in the Clerkenwell County Court on 29 March 2001. They renewed their application for permission to appeal. Sedley LJ had initially refused permission on paper, but later directed that the application be heard on notice before a full court, with the appeal to follow if permission were granted.

The hearing was listed for 18 and 19 April 2002. The applicants then indicated that they wished to withdraw, prompting the respondent to seek costs thrown away. The applicants subsequently sought urgently to revive the application. The central issues were whether the permission application should be relisted and how the costs caused by the intervening change of position should be dealt with.

Lord Justice Chadwick gave the sole judgment. The applicants’ purported withdrawal was premature because permission to appeal had not been granted, but the intended meaning of their correspondence was sufficiently clear: they did not wish to pursue the permission application at that stage.

1. The application for permission to appeal, with the appeal to follow if permission were granted, was to be relisted before two Lord Justices. A revised time estimate of one day was sufficient, and the matter was to be listed within the following two or three weeks if possible.
2. The applicants’ change of position had caused the respondent to incur preparation costs during the period when it was understood that the permission application would not proceed and that an application for costs thrown away would instead be heard. Those costs, incurred on 15, 16 and 17 April 2002, were properly awarded to the respondent in any event.
3. The costs of attending the present application were to be costs in the permission application. They might have been avoided if the applicants had offered to pay the intervening preparation costs and the respondent had accepted relisting. Neither party had proposed that sensible course.

The court did not determine the merits of the proposed second appeal or whether the threshold in CPR 52.13 was satisfied. The formal order was that the application be relisted before two Lord Justices; attendance costs on 18 April 2002 were costs in the application; and the respondent was to receive preparation costs limited to 15–17 April 2002.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 586, the application for permission to appeal was directed to be relisted before two Lord Justices. The respondent received preparation costs for 15–17 April 2002, while attendance costs on 18 April 2002 were made costs in the application.
2. High Court of Justice, Chancery Division: Jacob J, by order dated 16 July 2001, dismissed the applicants’ appeal against the County Court order.
3. Clerkenwell County Court: His Honour Judge Reynolds made the underlying order on 29 March 2001.