Murphy v Countryside In Partnership Plc

Interference with a first-instance judge’s discretion on costs is a strong step, particularly where a successful party has been deprived of all its costs. Nevertheless, permission to appeal should be granted where the applicant shows an arguable case, meaning that the proposed appeal has a real prospect of success. At the permission stage, it is neither necessary nor desirable to investigate each individual criticism supporting the proposed appeal once that threshold is met.

The claimant brought negligence proceedings after a ceiling collapsed during refurbishment works at the claimant’s home. The Southend County Court dismissed the claim but ordered no order as to costs, because of criticisms of the defendant’s conduct of the litigation.

The defendant renewed an application for permission to appeal on the costs issue after permission had previously been refused on the documents. The claimant did not appear. The central question was whether the defendant had an arguable case with a real prospect of success on an appeal against the costs order.

Application granted. The Court granted the defendant’s renewed application for permission to appeal on the question of costs.

1. Interference with a first-instance judge’s discretion on costs is a strong step. It was especially strong in this case because the defendant had succeeded on the claim but had been deprived of all its costs. That consideration did not make the order immune from appellate challenge.
2. On the material before the Court, the defendant had established an arguable case. In the Court’s formulation, the proposed appeal had a real prospect of success. The permission threshold was therefore met.
3. At the permission stage, it was neither necessary nor desirable to investigate separately the five criticisms made by the trial judge of the defendant’s conduct. The Court was concerned only with whether the proposed appeal should proceed, and did not determine the substantive merits of the costs challenge.
4. Sir Martin Nourse delivered the judgment, and Lord Justice Auld agreed. The formal order was: application granted.

• Court of Appeal (Civil Division): On 19 July 2006, the Court granted the defendant’s renewed application for permission to appeal on costs.
• Southend County Court: His Honour Judge Yelton dismissed the negligence claim and ordered no order as to costs, notwithstanding the defendant’s success, because of criticisms of the defendant’s conduct.
• Earlier permission decision: Sir Christopher Staughton had refused permission on consideration of the documents on 23 June 2005.