Gordon v Harry

An appellate court may extend time for an appellant’s notice where the circumstances justify it, taking account of the explanation for delay, the parties’ positions and any prejudice. It will rarely interfere with a trial judge’s costs discretion, but may do so where the judge has made a material error. Where the original costs order is affected by such an error, the appellate court may exercise the discretion afresh. The appropriate order depends on all the circumstances, including the issues won and lost, wasted hearing time, party conduct and the relative costs of represented and unrepresented parties.

The claimant and defendant were joint registered proprietors of a dwelling in which they had cohabited. Following a trial in the Central London County Court, the Recorder ordered a sale and declared that the net proceeds should be divided equally. He ordered the defendant to pay the claimant’s costs of the action, but only two-thirds of the trial costs.

The defendant lodged his appellant’s notice eight weeks late after receiving the claimant’s substantial bill of costs. He sought permission to appeal out of time and challenged the trial-costs order. The central issues were whether time should be extended and whether the Recorder had materially erred in exercising his costs discretion.

1. Extension of time and permission. Time was extended and permission to appeal out of time was granted. Although the delay was substantial, the defendant’s belated action had been prompted by the substantial costs bill, he was acting in person, and no actual prejudice from the delay was alleged.
2. Interference with costs discretion. The Recorder had a discretion as to costs, and appellate intervention was exceptional. Nevertheless, the Court of Appeal could intervene where persuaded that the judge had gone wrong.
3. Material error. The Recorder had ceased to have jurisdiction to re-exercise his discretion after the order was made, although the order had not been perfected when initially made. His later explanation showed that he had confused the result on the issues with the allocation of trial costs. The defendant had won the equal-shares issue occupying the final two days, yet the order required him to pay two-thirds of those costs. The reasoning that the defendant had won those issues, set against his having wasted time, did not rationally support that order.
4. Substitution of order. The Court of Appeal exercised the discretion afresh. The defendant was properly ordered to bear the costs of the first day, which had been wasted through his conduct and because the claimant succeeded on the sale issue. He was prima facie entitled to costs for the remaining two days, but, as a litigant in person, his recoverable costs would be comparatively small. Having regard to all the circumstances, the appropriate order was that he pay one-third of the trial costs.
5. The appeal was allowed to that extent. The order that the defendant pay the claimant’s costs of the action other than the trial costs remained undisturbed. The appellant’s costs were assessed at £500 plus £100 for the Appellant’s Notice.

• Court of Appeal (Civil Division): extended time, granted permission to appeal out of time, and allowed the appeal to the extent of substituting an order that the defendant pay one-third of the trial costs.
• Central London County Court: following the June 2003 trial, the Recorder ordered sale of the property, declared equal division of the net proceeds, and ordered the defendant to pay the claimant’s costs of the action save for two-thirds of the trial costs.