Thorne v Courtier & Ors

For appellate jurisdiction under the Access to Justice Act 1999 (Destination of Appeals) Order 2000, the court must assess the substance of the decision. An application made under CPR Part 23 may determine an independent and self-contained dispute. If it finally determines that dispute whichever way it is decided, it is a final decision.

A separately tried self-contained issue may also fall within the provision for a split hearing. An application within multi-track Part 7 proceedings may be treated as allocated to that track. A costs order which determines the only outstanding issue and disposes of the proceedings is final. The exclusion concerns detailed assessment of costs, not every costs decision.

These conjoined preliminary appeals concerned whether the Court of Appeal had jurisdiction under the Access to Justice Act 1999 (Destination of Appeals) Order 2000.

In Thorne, possession proceedings had been compromised. A dispute then arose over the meaning of the settlement agreement concerning damages for trespass. The Recorder held that damages were to be assessed by reference to mesne profits. The claimant appealed that ruling.

In Fox, a workplace-injury claim had been settled save for liability for costs incurred after a specified date. The county court awarded those costs to the defendant. The claimant appealed that costs order.

The common issue was whether each county court decision was a final decision in a multi-track Part 7 claim, so that the appeal lay to the Court of Appeal.

1. Disposition. The court held that it had jurisdiction to hear both appeals. The substantive merits of either appeal were not determined.
2. In Thorne, the court looked to the true nature of the application rather than its procedural form. Although made under Part 23 of the Civil Procedure Rules 1998, it concerned a separate contractual dispute over the settlement agreement. It could independently have been brought for declaratory relief under Part 8, or in other circumstances under Part 7. Its determination would finally resolve that dispute whether the declaration was granted or refused. It was therefore a final decision under article 1(2)(c) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000.
3. The contractual issue was also a self-contained part of the proceedings tried separately. Treating it as final accorded with the purpose of article 1(3), notwithstanding that the original proceedings had been stayed on compromise and that there had been no ordinary order splitting a trial. The application was sufficiently connected with proceedings already continued under Part 7 and allocated to the multi-track to satisfy article 4(a).
4. In Fox, the court read Tanfern Ltd v Cameron-Macdonald & Anor [2000] EWCA Civ 3023 as clarified by Dooley v Parker & Anor [2002] EWCA Civ 96. The exclusion from final decisions concerned only detailed assessment of costs. Here, costs were the sole outstanding matter. The judge’s order finally disposed both of that issue and of the proceedings as a whole. It was consequently a final decision within article 1(2)(c).

Lord Justice Maurice Kay and Lord Justice Etherton agreed with Lord Justice Moore-Bick.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 104, the court determined preliminary jurisdictional issues and held that both appeals could proceed in the Court of Appeal.
• Exeter County Court. Following a compromise of possession proceedings, Mr Recorder Hollington QC held that damages for trespass under the settlement agreement were to be assessed by reference to mesne profits. The claimant appealed.
• Sheffield County Court. HHJ Bullimore awarded the defendant its costs incurred after 20 October 2008. The claimant appealed that costs order.