Angel Airlines SA v Dean & Dean Solicitors

An appeal court may prevent a late procedural expansion of a costs dispute where the pleaded points, prior directions and party’s conduct confined the issue, and amendment would unfairly require a materially wider case and expert evidence. Permission to appeal obtained on materially misleading or incomplete material may be revoked by the Court of Appeal itself. Its power includes the lower court’s powers under CPR 52.10 and may also be exercised under the court’s inherent jurisdiction. The court should act directly after full argument where continuation of the appeal would be contrary to the interests of justice.

Angel Airlines SA v Dean & Dean Solicitors arose from the assessment of Dean & Dean’s bill of costs. Dean & Dean’s points of dispute originally challenged only whether Angel’s former solicitors had authority to act during a defined period following Angel’s liquidation. Master Seager Berry decided that limited issue in Angel’s favour.

Holland J granted permission to appeal on the basis that the dispute extended more widely and required a rehearing. Treacy J subsequently permitted Dean & Dean to amend their points of dispute to raise a much wider issue under Romanian law, but refused Angel permission to obtain a second expert opinion. Angel appealed. The central issues were whether the amendment and expert-evidence direction were procedurally fair, and whether this court could revoke the permission to appeal.

Lord Justice Rix delivered the judgment of the court. The appeal was allowed in respect of both rulings of Treacy J, and Holland J’s permission to appeal was revoked.

1. The original points of dispute, read in their procedural context, confined the dispute to the period ending on 20 April 2005. Dean & Dean had maintained that limited position before the Master, had not made an application to amend, and had been told that any amendment had to be made without delay.
2. Treacy J’s grant of the amendment substantially enlarged the dispute. The full procedural history showed that this would unfairly burden Angel with a new case based on Romanian law after the parties had prepared for the narrower issue. The refusal to permit a second expert would also have been gravely unjust, since Dean & Dean would have been able to rely on three Romanian lawyers against Angel’s one.
3. CPR 52.10 gives the Court of Appeal all the powers of the lower court, including power to affirm, set aside or vary an order or judgment. The court therefore had power to deal directly with the consequences of the permission order rather than leave the matter to be reargued before another judge.
4. Having heard full argument, the court revoked permission because it had been granted on a seriously misleading presentation of the procedural history and the resulting appeal had become contrary to the interests of justice. The court also considered that its inherent jurisdiction supported that remedy. The separate appeal concerning another bill of costs was left to take its own course.

Angel was awarded the costs of the appeal and of the hearings before Treacy J and Holland J. No order was made concerning the money in court.

1. Court of Appeal (Civil Division), [2006] EWCA Civ 1505: allowed Angel’s appeal against both rulings of Treacy J and revoked Holland J’s grant of permission to appeal.
2. High Court, Queen’s Bench Division: Treacy J granted Dean & Dean permission to amend their points of dispute and refused Angel permission to obtain a second Romanian-law expert opinion.
3. High Court: Holland J granted permission to appeal from Master Seager Berry’s decision and directed a complete rehearing.
4. Master Seager Berry: decided the preliminary issue concerning the defined period of the retainer in Angel’s favour.