Jobson v Record & Anor

The court’s discretion as to costs includes the power to reflect a party’s partial success and conduct. The general rule that the unsuccessful party pays the successful party’s costs remains subject to that discretion and to all the circumstances. A party cannot ordinarily challenge a costs decision on appeal by advancing a point which was available at trial but was not properly put to the trial judge. Evidence known at trial cannot generally be treated as new evidence on appeal. An extension of time may exceptionally be granted to a litigant in person, but permission to appeal will still be refused where the proposed appeal has no real prospect of success.

Following a five-day trial in the Chancery Division, His Honour Judge Langan QC ordered Dr Record to pay five-eighths of Mr Jobson’s costs and £25,000 on account. Dr Record, acting in person, sought an extension of time to appeal the costs order and permission to appeal.

He alleged that Mr Jobson had relied on a fabricated invoice and argued that this conduct should have altered the costs order. The issues were whether the delay should be excused and whether the proposed challenge disclosed any real prospect of success.

1. Extension of time. The appellant’s notice was substantially out of time. The delay was exceptionally excused because Dr Record was a litigant in person, had attempted to file the documents earlier, had sent copies to the claimant’s solicitors, and had been awaiting the costs judgment transcript. Time was extended to 15 July 2005.
2. Costs discretion. Under the Civil Procedure Rules, r 44.3(1), (2), (4) and (5), the court has discretion whether costs are payable, their amount and timing. The general rule is that the unsuccessful party pays the successful party’s costs, but the court may make a different order after considering all the circumstances, including conduct and partial success. The trial judge was entitled to regard Mr Jobson as the successful party overall while recognising Dr Record’s success on individual issues.
3. Alleged fabricated evidence. The complaint that Mr Jobson was implicated in the fabrication was based substantially on evidence available at trial. Dr Record had cross-examined Mr Jobson on the issue but did not put the contradictory witness statement to him or rely on the point in submissions. The point therefore could not properly be used to challenge the costs ruling on appeal.
4. Disposition. The court saw no real prospect of success in the proposed appeal. The extension application was granted, but permission to appeal was refused.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1099 — extension of time granted to 15 July 2005; permission to appeal against the High Court costs order refused.
• High Court of Justice, Chancery Division: Costs order made on 23 September 2004 requiring Dr Record to pay five-eighths of Mr Jobson’s costs and £25,000 on account.