Poster v JMC Holidays

Permission for a second appeal requires an important point of practice or principle. The court may also refuse permission where pursuing the appeal would impose a disproportionate burden on the proposed respondents or consume resources unjustifiably under the overriding objective.

An order is made when the judge assents to the substance of the proposed order in court and directs that it be drawn up. The later sealing of the order does not determine when the order was made. A non-party who assumes control of litigation and holds relevant documents may be ordered to disclose them and may be made liable for the associated costs.

Mr Poster sought permission to appeal against orders arising from disclosure proceedings in the Central London County Court. Judge Knight QC had made an order requiring disclosure by the claimants and Mr Poster, who held litigation documents. After the claimants delayed in providing disclosure, the defendants issued an application for an unless order. The application was withdrawn when disclosure was provided, but Judge Knight ordered Mr Poster to pay its costs on an indemnity basis.

Laddie J reduced the order to costs on the standard basis. Mr Poster sought permission to challenge both the costs order and the costs of his appeal to Laddie J. The central issues were whether an order had been made orally in court, whether the proposed second appeal raised an important point of practice or principle, and whether the costs order against a non-party was permissible.

1. Application dismissed. Permission to appeal was refused. The proposed second appeal did not satisfy the heightened threshold in CPR 52.13.2 because it raised no important point of practice or principle.

2. The judge who made the order was satisfied that he had made it on 15 December. He had heard the proposed terms, heard Mr Poster raise no objection, assented to the alteration proposed by counsel and directed counsel to draw up the order. The fact that the formal order was sealed later did not mean that no order had been made.

3. The court noted that, under CPR Part 52, time for appealing runs from the making of the order in court rather than from the later drawing up or sealing of the formal order.

4. The costs order was within the court’s jurisdiction. Section 53 of the County Court Act 1984 permitted an order against a non-party for disclosure of documents. Although CPR 48.1 stated the normal rule that the person against whom such an order was sought would receive the costs of the application, CPR 48.2 permitted a different order. The circumstances justified departing from the normal rule because Mr Poster had involved himself in the proceedings and had control of the relevant documents.

5. The court also warned that Mr Poster’s apparent conduct of litigation without the necessary entitlement could constitute an offence under section 20(1) of the Solicitors Act 1974, with section 70(1) and (6) of the Court and Legal Services Act 1990 relevant to that position. The court recommended that he study the law to avoid possible contempt or criminal proceedings.

6. The court applied the overriding objective by considering the importance of the issues, the resources involved and proportionality. It was inappropriate to impose on the proposed respondents the burden of resisting a further appeal where the proposed issues were case-specific and raised no important principle.

• Court of Appeal (Civil Division): application for permission to appeal dismissed.
• High Court, before Laddie J: altered Judge Knight QC’s indemnity costs order to costs on the standard basis and ordered Mr Poster to pay the costs of that appeal.
• Central London County Court, before Judge Knight QC: ordered Mr Poster to pay the costs of the defendants’ disclosure application on an indemnity basis.