Feasey v Sun Life Assurance Company of Canada & Ors

On a post-judgment costs and permission ruling, the Court of Appeal dismissed the appeal and apportioned costs by reference to the issues lost, abandoned and pursued. A party that made no written or oral contribution to an appeal could have its recoverable costs limited to a noting brief. Attendance by senior counsel and senior partners could be treated as unnecessary and unjustified. Costs relating to abandoned issues were payable only up to abandonment. The court also fixed an interim payment on account of costs despite the absence of detailed figures, and directed that any further application for leave to appeal should be made to their Lordships.

These were linked appeals from the Queen’s Bench Division (Commercial Court) before Mr Justice Langley. The parties were Anthony Feasey, Sun Life Assurance Company of Canada, Phoenix Home Life Mutual Insurance Company, and Steamship Mutual Underwriting Association (Bermuda) Ltd.

The supplied text is a post-judgment ruling addressing dismissal of the appeal, allocation and limitation of costs, an interim payment, and permission to appeal. It records an unsuccessful cross-appeal, abandoned misrepresentation issues, and a separate appeal concerning the 1774 Act. The central issues were the appropriate costs consequences of the parties’ success, abandonment and participation, and whether permission to appeal should be granted.

1. Disposition and costs. The appeal was dismissed. The Syndicate was ordered to pay Steamship’s costs of the appeal, subject to detailed assessment. Sun Life was required to pay the Syndicate’s costs in the appeal affecting Steamship.
2. Interim payment. Although the parties had not provided detailed figures, the court considered the expense of the litigation and awarded an interim payment of £100,000, to be passed down the line.
3. Issue-based and conduct-based costs. The Syndicate was ordered to pay the costs of the cross-appeal which it had lost. Sun Life was ordered to pay the costs of the abandoned misrepresentation issues up to their abandonment on 17 January. In the 1774 Act appeal, the Syndicate had made no written or oral submissions. Its recoverable costs were therefore limited to those of a noting brief. The court regarded attendance by senior counsel and senior partners as unnecessary and unjustified, and treated the limitation as reflecting that conduct.
4. Permission to appeal. The court did not grant leave. It considered the four points advanced by Mr Kendrick good, but noted the absence of an extreme emergency and stated that leave should be sought from their Lordships. It indicated that the case was important and difficult and might interest them.

1. High Court of Justice, Queen’s Bench Division (Commercial Court): decision of Mr Justice Langley; the citation of the decision under appeal is not stated in the judgment.
2. Court of Appeal (Civil Division): appeal dismissed, with issue-based and conduct-based costs orders, an interim payment of £100,000, and no leave to appeal granted by this court.