Wallace & Anor v Crossley & Anor

Permission to appeal against discretionary costs orders is exceptional. The applicant must show a real prospect that a full court would find an error of legal principle, a misunderstanding or overlooking of relevant matters, reliance on irrelevant matters, or an order that is plainly wrong. A different exercise of discretion is insufficient.

On a second appeal, permission additionally requires an important point of general principle or practice, or another compelling reason. Delay, the existence of a consent order, and the absence of a real prospect of success may independently justify refusal. The court should also be reluctant to permit further costs where the proposed appeal has no realistic prospect of success.

The judgment concerned three renewed applications for permission to appeal arising from lengthy litigation between the parties about sewage escaping from the Crossleys’ land onto the Wallaces’ land.

1. Application 1885 challenged an order by HHJ Geddes for a £15,000 interim payment on account of costs.
2. Application 1886 challenged an order requiring the Crossleys’ property to remain empty until new sewage works were operational.
3. Application 2588 concerned a second appeal against the striking out of the Crossleys’ defamation claim concerning a newspaper article. Master Miller struck out the claim and Openshaw J dismissed the first appeal.

Arden LJ had refused permission on paper in the relevant matters. The central issues were whether any proposed appeal had a real prospect of success and, for the defamation claim, whether it raised an important point of general principle or practice or disclosed another compelling reason.

1. Applications 1885 and 1886 refused. Orders concerning liability for costs and interim payments are matters for the judge who handled the case. Permission to appeal requires a real prospect that the judge made an error of legal principle, misunderstood the facts or the order, overlooked a relevant matter, took an irrelevant matter into account, or made an order that was plainly wrong. The possibility that another judge might have exercised the discretion differently does not satisfy that threshold.
2. The dismissal of later committal and sequestration proceedings did not show that the Wallaces’ earlier proceedings were improperly brought. The Crossleys’ financial restrictions did not justify withholding orders to which the Wallaces were properly entitled.
3. The challenge to the order keeping the property empty was substantially out of time. No good reason for the delay was established. Even if an extension had been granted, there was no real prospect of success.
4. The earlier order was a consent order as a matter of law, notwithstanding the anxiety or fear in which it was made. Requiring the property to remain empty until the sewage works were operational was difficult to impugn.
5. Application 2588 refused. This was a second appeal. Under Part 52 of the Civil Procedure Rules 1998, permission required an important point of general principle or practice or some other compelling reason. The detailed decisions below were fact-specific and the proposed appeal had no real prospect of success. The judge had concluded that malice was irrelevant, that only three sentences in the article could be attributed to the Wallaces, and that the alleged defamatory sting concerning the sewage system had already been determined against the Crossleys. A dispute about the amount of costs could be dealt with by detailed assessment.
6. All three renewed applications were dismissed. No order for the Wallaces’ costs of the earlier permission hearing was made because their attendance was not required for the normally ex parte application, and the court had decided the applications on the Crossleys’ material.

• Court of Appeal (Civil Division): Arden LJ refused permission on paper in the relevant applications. On renewed oral hearings, Lord Justice Mummery refused all three applications in [2009] EWCA Civ 946.
• High Court, Chancery Division: Openshaw J dismissed the first appeal against the order striking out the defamation claim.
• Master Miller: struck out the defamation claim against the Wallaces.
• County Court: HHJ Geddes made the underlying costs, injunction and sewage-related orders described in the judgment.