Pope v Energem Resources Ltd. & Ors

Permission to appeal from discretionary case-management and costs orders requires a real prospect of showing an error of law or an unreasonable exercise of discretion. Arguments directed to the underlying dispute do not establish such an error.

A party cannot use later proceedings to reopen or circumvent earlier rulings which are no longer open to challenge. In particular, disclosure is not ordered to enable a party to construct an otherwise unarguable fraud claim. Where estate monies held in court belong to the personal representative and beneficiary, they may properly be used to satisfy costs orders made against that party.

Jason Pope, an employee at an Angolan mine, was kidnapped in 1998 and was presumed dead. His mother brought contractual proceedings against his employer, IOM, concerning life-insurance cover. She later sought to expand the litigation by adding fraud and negligence claims, claims concerning three other kidnapped employees, and a claim against the employer's parent company.

HHJ Griggs restricted the first proceedings and later made case-management, strike-out, costs and non-consolidation orders in the first and second proceedings. An earlier application for permission to appeal aspects of the first proceedings had been refused: [2008] EWCA Civ 994. Black J had also ordered Mrs Pope to pay IOM's costs of its successful appeal concerning a probate costs issue.

Mrs Pope and Damian Pope sought extensions of time and permission to appeal the later orders. The central issue was whether any proposed appeal had a real prospect of success.

1. The applications were refused. Richards LJ held that none of Mrs Pope's or Damian Pope's proposed appeals had a real prospect of success. Any necessary extension of time was also refused because it could produce no useful outcome.

2. Black J's order that Mrs Pope pay IOM's costs of the probate appeal was a discretionary decision. The relevant issue was the cost consequence of IOM's successful appeal, not the underlying probate dispute. There was no legal flaw in the judge's approach and the order lay well within the reasonable ambit of her discretion.

3. The later case-management and costs orders of HHJ Griggs, including permission to amend a defence, disclosure directions, payments on account of costs, and the refusal to consolidate the proceedings, were likewise proper discretionary decisions. The applicants had not shown an arguable miscarriage of justice or any basis on which an appellate court could interfere.

4. Earlier adverse rulings, including rulings for which permission to appeal had already been refused, could not be reopened. The second proceedings could not properly be used to circumvent those decisions. The strike-out of Mrs Pope's separate claim and of the fraud claim against the solicitors was justified. There was no sustainable allegation of fraud, and disclosure could not be sought in order to create a case fit for trial.

5. The insurance monies held in court were properly treated as belonging to Mrs Pope as personal representative and beneficiary of Jason Pope's estate. They could be withdrawn by her and, while held in court, could properly be used to meet costs orders against her. The order for payment from that fund was therefore a proper exercise of discretion.

The separate appeal by IOM and Energem concerning Damian Pope's appointment as personal representative had already received permission and was not determined by this judgment.

• Court of Appeal (Civil Division): Richards LJ refused Mrs Pope's and Damian Pope's applications for permission to appeal, and any necessary extensions of time, from HHJ Griggs' orders of 24 July and 17 September 2008 and from Black J's costs order. The existing appeal by IOM and Energem concerning Damian Pope's appointment remained for the full court.
• High Court, Queen's Bench Division, Exeter District Registry: HHJ Griggs made the relevant case-management, strike-out, costs and non-consolidation orders in the first and second proceedings on 24 July and 17 September 2008.
• High Court: On 11 February 2008, Black J allowed IOM's appeal against the District Registrar's failure to exercise a costs discretion, remitted that issue to the District Registrar, and ordered Mrs Pope to pay IOM's appeal costs.
• Court of Appeal (Civil Division): An earlier application for permission to appeal HHJ Griggs' order restricting the first proceedings was refused in November 2007: [2008] EWCA Civ 994.
• Bristol District Probate Registry: The District Registrar dismissed Mrs Pope's application to be appointed personal representative of the estates of the other three kidnapped employees.