Davies & Anor v Bramwell & Ors

On an oral renewal of permission to appeal, permission should be confined to grounds showing reasonable prospects of success. A challenge to a trial judge’s discretionary costs order requires a real prospect of demonstrating an error of principle, with weight given to the trial judge’s position in assessing a complex dispute. A stay of an interim costs payment may be granted conditionally where recovery might be difficult if repayment became necessary. Detailed assessment need not be stayed where costs will remain payable and assessment is required.

The claimants sought oral renewal of permission to appeal from a boundary dispute tried by His Honour Judge Graham Jones. The cover sheet identifies Cardiff County Court, while paragraph 1 refers to the Swansea County Court. The proposed appeal concerned rights of way over “blue land” arising from a 1976 conveyance and a costs order which treated the two claimants’ litigation as one dispute. Applications were also made to adduce the original conveyance plan, amend the appellant’s notice, and stay costs orders pending appeal. The central issues were whether permission should be granted, whether the further evidence should be dealt with at the appeal hearing, and whether enforcement of the costs orders should be stayed.

The court dealt with permission and consequential applications only. It did not determine the substantive boundary dispute.

1. Permission to appeal. The claimants had reasonable prospects of success on the issue concerning rights of way over the blue land and permission was granted on that issue alone. The proposed challenge to costs was refused. The trial judge had exercised a wide discretion after hearing a complex and acrimonious dispute and was particularly well placed to assess whether the claimants’ cases had properly been treated as one dispute. There was no real prospect of showing that the costs discretion had been exercised on a wrong principle.
2. Further evidence. The application to adduce the original plan to the 1976 conveyance was adjourned to the appeal hearing. The court considered it sensible that the plan should be before the appeal court, while making no order admitting it at that stage and encouraging the parties to deal with the issue by agreement.
3. Other case management. The application to amend the appellant’s notice was granted so that the appeal papers could be confined to the issue remaining open.
4. Stay of costs orders. The evidence justified concern that sums paid might not be recoverable if repayment were later ordered. The interim payment order was therefore stayed on condition that £10,000 be placed in a separate interest-bearing solicitors’ account pending the appeal or further order. The detailed assessment of the balance of costs was not stayed, because one or both claimants would remain liable for some of the defendants’ costs and assessment would still be necessary.
5. Orders. Permission was granted on the blue-land issue and refused on costs. The conditional stay and amendment were granted; the costs of the application were costs in the appeal, with further directions for the appeal papers.

1. Court of Appeal (Civil Division): On oral renewal, permission to appeal was granted on the blue-land issue and refused on the costs issue. The court granted the amendment application and conditionally stayed the interim payment order. The detailed assessment was not stayed. [2006] EWCA Civ 1453
2. County Court: His Honour Judge Graham Jones tried the boundary dispute and made the orders concerning rights of way and costs. The judgment identifies the lower court inconsistently as Cardiff County Court on the cover sheet and Swansea County Court in paragraph 1.