Burke v The College of Law & Anor

Where several respondents succeed but their interests are not separate and distinct enough to require separate representation, the unsuccessful appellant may be ordered to pay only one set of costs. Those costs may be awarded to the respondent that bore the principal burden of preparing the case. The court may summarily assess a fair and proportionate sum where detailed assessment would add unnecessary expense. An unsupported assertion that payment would stifle a further appeal does not justify a stay.

Justin Burke appealed from a decision of the Employment Appeal Tribunal in proceedings against the College of Law and the Solicitors Regulation Authority. The Court of Appeal had previously given judgment in the appeal, reported at [2012] EWCA Civ 37. This ruling followed further submissions and addressed consequential issues: the appropriate costs order and quantum, permission to appeal to the Supreme Court, and whether the costs order should be stayed pending any further appeal.

1. Costs. The unsuccessful appellant was ordered to pay one set of costs. Although both respondents had been separately represented, their interests on the appeal were not sufficiently separate and distinct to justify separate costs. The costs order was made in favour of the first respondent, which had borne the principal burden of preparing the case.
2. Assessment. The court considered it appropriate for the first respondent to instruct leading and junior counsel. The importance of the legal issue justified leading counsel, while the lengthy history of the case justified retaining junior counsel. Since agreement on quantum had not been reached, and detailed assessment would add unnecessarily to the costs, the court summarily assessed costs at £10,500 including VAT as a fair and proportionate sum (per Lord Justice Kitchin, for the court).
3. Permission to appeal. The appeal was outside the exceptional category of appeals for which the Court of Appeal would give permission to appeal to the Supreme Court. The application for permission was therefore dismissed.
4. Stay. The appellant’s application for a stay of the costs order pending any Supreme Court permission application, and any appeal if permission were granted, was refused. The suggestion that payment would stifle a further appeal was unsupported and, in the circumstances, did not justify a stay.

• Court of Appeal (Civil Division) — Following the court’s earlier judgment in [2012] EWCA Civ 37, the present ruling determined consequential issues concerning costs, permission to appeal and a stay.
• Employment Appeal Tribunal — Appeal from the decision identified as UKEAT/0301/10/SM.