Parker Rt Hon, 9th Earl of Macclesfield v Beechwood Estates Company & Anor

Applications to set aside permission to appeal are generally discouraged, but the court may reconsider a substantial extension of time where the grounds opposing it are powerful and were not fully explored before the single judge. Such circumstances may constitute a compelling reason under Ord.52.9 (2). The court may direct that the ground supporting reconsideration be argued first and refuse an extension for other grounds if that ground fails. A later judgment on wasted costs does not reopen an earlier discretionary costs order unless it demonstrates a material change in the judge’s view. A different impression formed after further submissions would not alone justify appellate interference.

After a trial concerning the Earl’s occupation of Shirburn Castle, Mr Justice Lewison held that he occupied the property under a contractual licence requiring two years’ notice. The judge made no order as to costs. The company’s application for permission to appeal the costs order was refused, and no application was initially made to the Court of Appeal.

After the Earl’s unsuccessful wasted-costs application against the company’s solicitors, the company sought permission to appeal out of time. Mummery LJ granted permission and extended time. The company argued that the wasted-costs judgment showed that the judge had materially changed his view of the company’s disclosure failures. The central issue was whether that alleged change justified reopening the earlier costs discretion and permitting the remaining grounds of appeal.

Appeal dismissed. The extension of time for the remaining grounds was set aside. The respondents were awarded 50 per cent of their appeal costs up to 28 September 2004 and 100 per cent thereafter, on the standard basis.

1. Reconsideration of permission. Waller LJ held that the authorities’ general discouragement of applications to set aside permission did not prevent reconsideration where a substantial extension had been granted and the objections to it were powerful and had not been fully explored before the single judge. In the circumstances, there was a compelling reason to direct that the disclosure point be argued first. Each case depended on its particular circumstances.
2. Disclosure judgments. The wasted-costs judgment addressed whether the company’s solicitor had acted negligently and caused costs to be wasted. It recognised that standard disclosure under the Civil Procedure Rules was narrower than discovery under the former rules. It did not, however, demonstrate a fundamental change in the judge’s view. The judge had criticised disclosure at trial, while also recognising that the alleged mass of undisclosed material was overstated. His later finding concerned two documents which should have been disclosed and the absence of negligence in relation to most other documents.
3. Appellate interference with discretion. Even if the later judgment had produced a somewhat different impression, that would not by itself justify attacking the earlier costs discretion. Arden LJ added that a later decision reached after further submissions did not make the earlier exercise of discretion appealable merely because the judge might have reached a different conclusion.
4. Costs. The respondents were entitled to costs incurred in any event. The court reduced recovery to reflect the late organisation of the appeal and gave effect to the respondents’ offer that the appeal be withdrawn without costs.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1476, the court dismissed the company’s out-of-time appeal against the costs order and set aside the extension of time for the remaining grounds.
• High Court, Chancery Division: On 24 July 2003, Mr Justice Lewison held that the Earl occupied Shirburn Castle under a contractual licence and ordered no order as to costs. Permission to appeal the costs order was refused.