Poole v Arcot Hall Golf Club

Costs decisions are matters of judicial discretion. The court must consider all the circumstances of the case, including whether attendance by the opposing party was authorised or required by the orders made. Litigation may remain extant even before a formal appeal or other proceeding has been issued, where the parties are actively dealing with the dispute. The Court of Appeal will interfere with a summary assessment only where there is a realistic basis for concluding that the assessment was inappropriate, disproportionate or otherwise wrong. Permission to appeal should be refused where there is no reasonable prospect of success.

The claimant sought pre-action discovery in contemplated defamation proceedings against the defendant golf club. A district judge refused the application. Henriques J refused permission to appeal out of time and summarily assessed the defendant’s costs at £3,500. The claimant applied to the Court of Appeal for permission to appeal against the costs order, arguing that the defendant’s attendance and costs were unnecessary because no appeal was formally pending and that the assessment was disproportionate.

1. Application refused. There was no reasonable prospect of a successful appeal against the costs order.
2. Costs were within the judge’s discretion. The judge was entitled to consider all the circumstances and to conclude that the respondents had a right to be present because the orders provided for notice of the proposed applications and contemplated their attendance at the possible appeal.
3. The absence of a formally issued appeal between the district judge’s order and 4 October did not mean that the respondents’ work was unnecessary. The papers showed that their solicitors were actively involved in dealing with the case, so the litigation remained extant.
4. The court recognised the principle of proportionality relied upon by the claimant, including the approach referred to in Lowndes v Secretary of State for the Home Department. However, there was no basis on a full appeal for concluding that the assessment of £3,500 was inappropriate, disproportionate or at a level warranting appellate interference.
5. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal against Henriques J’s refusal of permission to appeal out of time and the summary costs assessment was refused.
• Queen’s Bench Division: Henriques J dismissed the claimant’s application for permission to appeal out of time on 25 January 2002 and ordered summary assessment of costs at £3,500.
• District judge: District Judge Goudie refused the claimant’s application for pre-action discovery on 6 July 2001.