Constantinou & Ors v Wilmot-Josife & Ors

In appellate review of case-management and costs decisions, an agreement between the parties about how a hearing is to be used does not restrict the judge’s responsibility to manage the case or make an appropriate costs order. A party pressing for an unrealistic time estimate may properly bear the costs thrown away when the hearing cannot proceed as planned, provided the order falls within the generous ambit of discretion. An interim payment on account of costs, with final quantification reserved to a costs judge, attracts limited appellate interference. Allegations of partiality require support in the record beyond counsel’s subjective impression. Private unrecorded communications with counsel about case management are undesirable.

The proceedings concerned provision for a claimant under the Inheritance Act from the estate of a deceased man with whom she had a long-standing relationship and children. District Judge Bowman decided the substantive issues in November 2009 and made substantial provision. Residual matters were addressed in January 2010.

On 9 February 2010, Singer J dealt with case management, ordered the estate to pay the claimants’ costs thrown away in full on the standard basis, and directed an interim payment of £17,500 pending assessment. Wall LJ directed that the permission application be heard on notice. The central issues were whether the hearing had been managed unfairly or with partiality, and whether the costs and interim-payment orders exceeded the judge’s discretion.

Disposition

The Court of Appeal unanimously refused permission to appeal. The order was: Application refused.

1. The chronology showed that the estate had pressed for permission, a stay and directions to be dealt with within a one-hour listing. The claimants had questioned whether that programme was realistic. The estate therefore bore responsibility for the pressurised hearing and the briefing costs thrown away.

2. The apparent agreement that the hearing would deal only with the stay, or that costs would be reserved, did not fetter Singer J’s freedom and responsibility to manage the case. Even if there had been an agreement, it could not limit the judge’s power to make different provision, particularly where the reservation was to another judge.

3. The order requiring the estate to pay the respondent’s costs thrown away in full fell within the judge’s generous ambit of discretion. The change from ordering half the costs to ordering the whole was explained by the submissions made on behalf of the respondent.

4. The interim payment of £17,500 was not a summary assessment. Final quantification of the costs thrown away was left to a costs judge, with provision for credit or reimbursement if the assessment were lower. The amount was arguably high, but it was a cash-flow matter and did not justify appellate interference.

5. The allegation that the judge had acted with covert punitive intent or lacked impartiality was unsupported by the transcript. A serious allegation of that kind could not succeed on counsel’s subjective impression alone.

Observations

Lord Justice Thorpe considered that a judge’s private telephone call to leading counsel on the eve of a hearing, without a record of the exchange, was not good practice. An identical written communication would have been preferable. He also regarded the automatic listing of directions before consideration of the merits and any stay as questionable practice.

1. Court of Appeal (Civil Division): Wall LJ directed that the permission application be listed on notice. The Court of Appeal refused permission to appeal: [2010] EWCA Civ 747.
2. High Court of Justice, Family Division: Singer J made case-management directions, ordered the estate to pay the respondent’s costs thrown away in full on the standard basis, and directed an interim payment of £17,500 pending assessment.
3. District Judge: District Judge Bowman decided the substantive issues in November 2009. Residual issues were dealt with at a hearing on 11 January 2010.