In Newman Ltd v Adlem

In deciding costs of a procedural application, the court should focus on who caused the costs, rather than merely on which party formally required permission. A party who insists on a formal application and opposes relief may properly be ordered to pay its costs, even where the other party was late and needed permission. Costs fall within the judge’s wide discretion. An appeal has no reasonable prospect where the order discloses no error of principle and falls within that discretion.

The claimant obtained permission from Nicholas Warren QC, sitting as a Deputy Judge of the Chancery Division, to serve witness statements out of time. The Deputy Judge ordered the defendant to pay the costs of that procedural application. The defendant did not challenge the admission of the evidence, but sought permission to appeal the costs order, arguing that the claimant’s lateness and need for permission meant that the claimant should bear the costs. The Court of Appeal considered the application on the papers by consent.

1. Costs of the procedural application. The defendant’s argument was fallacious because it adopted an unduly formalistic approach to the rules of court. The claimant’s late evidence required a formal application only because the defendant insisted on one and opposed admission. Had the defendant consented, the matter could have been dealt with at no or trivial cost. The defendant therefore caused the costs of the application.
2. Discretion and appeal. The Deputy Judge’s order was entirely right and was plainly within the wide discretion available when deciding costs. No error of principle was shown. The fact that the claimant was late, and that permission was required, did not determine responsibility for the costs.
3. Disposition. There was no reasonable prospect of a successful appeal, so permission to appeal was refused. The application had been considered without the Deputy Judge’s view because permission had not been sought from him, as it should have been; that omission made no difference, since he would have refused permission.

• Chancery Division: Nicholas Warren QC, sitting as a Deputy Judge, permitted late service of the claimant’s witness statements and ordered the defendant to pay the costs of the application on 8 June 2004.
• Court of Appeal (Civil Division): Jacob LJ considered the defendant’s application for permission to appeal on the papers and refused permission.