Hutchings v Parker

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or another compelling reason for the Court of Appeal to intervene. Complaints confined to the detailed facts or to the handling of evidence, costs, VAT or submissions will not ordinarily satisfy that threshold.

Failure to allocate proceedings to a track does not necessarily restrict the costs judge’s discretion. In assessing costs, the judge may consider how the litigation was actually conducted and the importance the parties attached to it. A decision based entirely on the particular facts, without an issue of wider significance, does not justify a second appeal.

The appellant challenged a costs decision arising from long-running boundary and trespass proceedings. Following an order for costs on the standard basis, a detailed assessment substantially reduced the costs claimed. HH Judge Price QC later determined the remaining costs issues on appeal, and the appellant sought permission for a second appeal.

The proposed grounds concerned evidence, costs of an earlier appeal, case allocation, VAT and the alleged assessment of costs as if the proceedings had been allocated to the multitrack. The renewed application required consideration of whether any ground raised an important point of principle or practice, or another compelling reason.

1. Permission refused. The complaints about evidence, the costs of the successful appeal and VAT were case-specific matters. They raised no issue of general significance or other compelling reason for intervention.
2. The allocation ground also failed. The proceedings began before the introduction of the Civil Procedure Rules, so no formal track allocation took place and transitional provisions governed the case. The absence of allocation did not limit HH Judge Price QC’s discretion on costs.
3. Although it would have been open to the judge to deal with the case on a small-claims basis, he was entitled to take account of the way the parties had conducted the litigation. His conclusion that the sums claimed were proportionate to the importance attached to the claim was a fact-sensitive assessment, not an error of law.
4. The decision below raised no issue of wider significance. The renewed application for permission to appeal failed.

• Court of Appeal (Civil Division): Permission to bring a second appeal was refused. Patten LJ had previously refused permission on the papers.
• Lower appellate decision: HH Judge Price QC decided the costs appeal, following the detailed assessment decision of District Judge Carson. The judgment was formally handed down on 2 November 2009.