Parker v Hutchings

In an application for permission to appeal a costs order, the ordinary practice is that the unsuccessful applicant pays the costs of the application. A party’s failure to comply with procedural requirements concerning costs does not, without more, deprive that party of the costs incurred in responding to an unsuccessful application. Permission should be refused where the applicant shows no prospect that a full appeal would succeed. An application may also be premature where the lower court has not finally resolved the underlying issues and has directed further steps to complete them.

The application arose from a detailed assessment of Parker’s costs. Hutchings had offered £4,000 inclusive of VAT and disbursements, but the costs officer assessed the costs at £4,005.76 and ordered Hutchings to pay £630 costs of the assessment. Costs Judge Seager Berry allowed Hutchings’s appeal in part on specified misconduct-related matters but dismissed his challenge to the order requiring him to pay the detailed-assessment costs.

Cresswell J refused permission to appeal, considering that the matter had not been finally resolved and directing that it return to Costs Judge Seager Berry. Hutchings then sought permission in the Court of Appeal to appeal Cresswell J’s costs order, alleging inadequate notice of Parker’s costs and non-compliance with the applicable costs requirements. The central issue was whether there were grounds justifying permission to appeal.

Application refused.

1. Cresswell J’s judgment was clear when read as a whole. He had refused permission to appeal and regarded Hutchings’s application as premature because the costs issues had not yet been finally resolved. The drawn order, which initially recorded that permission had been granted, was erroneous and was later corrected.
2. The ordinary practice is that the costs of an unsuccessful application are borne by the unsuccessful party. Parker’s failure to comply with various procedural requirements concerning costs did not provide a ground for depriving him of the costs incurred in meeting Hutchings’s unsuccessful application.
3. Nothing had been shown which gave the Court of Appeal any basis for thinking that Hutchings would have the slightest prospect of success if the application became an appeal before the full court. In those circumstances, the single Lord Justice considered that he did not have jurisdiction to grant permission and that it would not be right to do so.

• Court of Appeal (Civil Division): On 2 May 2002, the application for permission to appeal Cresswell J’s costs order was refused.
• Queen’s Bench Division (Cresswell J): On 29 January 2001, permission to appeal the Costs Judge’s order was refused. The matter was directed to return to Costs Judge Seager Berry because it was not yet finally resolved.
• Costs Judge Seager Berry: The appeal from the costs officer’s order was allowed in part, but the challenge to the order requiring Hutchings to pay the costs of the detailed assessment was dismissed.
• Supreme Court Costs Office: The costs officer assessed Parker’s costs at £4,005.76 and ordered Hutchings to pay the assessment costs.