Gray v Going Places Leisure Travel Ltd

Unresolved costs, including a wasted costs order against a legal representative, ordinarily form part of the court’s final disposal of proceedings which have reached trial. They should therefore be determined by the tribunal that disposes of the action, unless there is a good reason for another judge to do so.

An application may be made after the final order, but delay may affect whether relief is granted. The assessment jurisdiction in CPR r 44.14 does not displace that principle, save where an assessment first reveals the basis for a wasted costs order or another proper reason exists. The destination of an appeal depends on the jurisdiction which the lower court purported to exercise, rather than the jurisdiction it should have exercised.

The claimant’s solicitors acted under a public funding certificate in a multitrack claim. The certificate was discharged shortly before the listed trial. The claimant did not attend, and His Honour Judge Mayor QC dismissed the claim and made a costs order.

The defendant subsequently applied to a district judge for a wasted costs order against the solicitors. The district judge granted the application. On the solicitors’ appeal, Judge Mayor held that only the judge who had disposed of the claim could determine that application and quashed the order.

The defendant appealed. The issues were whether the district judge had jurisdiction to make the wasted costs order and whether an appeal from that order lay to the circuit judge or directly to the Court of Appeal.

1. Appeal dismissed. The court unanimously upheld Judge Mayor’s decision. Judge Mayor had jurisdiction to hear the appeal from the district judge and was right to quash the wasted costs order.

2. Per Neuberger LJ, costs allocation in proceedings which reach trial is ordinarily part of the final order disposing of the action. This is so whether costs are sought from a party or from a non-party legal representative. Subject to a good reason to the contrary, the tribunal which determines the outcome should deal with all unresolved costs immediately after judgment.

3. Sections 51(1) and 51(6) of the Supreme Court Act 1981, read together, reinforced that a wasted costs order is part of the costs-allocation exercise. A party may seek such an order after the final order has been drawn up, but delay may affect the grant of relief. Ordinarily, jurisdiction remains with the judge who disposed of the proceedings. Another judge may determine the matter where the original judge is unavailable or there is another good reason.

4. CPR r 44.14 concerns wasted costs orders made during assessment proceedings. It did not assist the defendant. It may apply where the assessment documents first reveal a basis for such an order, or where an application to the trial judge would otherwise be inappropriate. The district judge also lacked jurisdiction to make what was, in substance, part of the final costs order in a multitrack case.

5. The proper appeal route was nevertheless to the circuit judge. The district judge had purported to exercise a separate, free-standing post-disposal costs jurisdiction, rather than the jurisdiction to make a final order in multitrack proceedings. The appeal therefore fell within paragraph 3(2) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, rather than the route for a multitrack final decision.

• Court of Appeal (Civil Division) — dismissed the defendant’s appeal and upheld the quashing of the wasted costs order: [2005] EWCA Civ 189.
• Northampton County Court, His Honour Judge Mayor QC — allowed the solicitors’ appeal from the district judge, held that the district judge lacked jurisdiction to determine the wasted costs application, and quashed that order.
• Northampton County Court, District Judge McHale — made and summarily assessed a wasted costs order against the claimant’s solicitors.