Salekipour v Parmar & Ors

Permission to appeal may be granted where the proposed ground has a real prospect of success. An arguable procedural irregularity in a non-party costs order does not require proof at the permission stage that the default costs certificate is inflated.

It was arguable that the discretion under Senior Courts Act 1981, section 51(3), required consideration of both the extent of the third party’s liability and how the amount payable should be established. The third party might also require an opportunity to be heard on the costs claimed.

The appeal arose from an order of His Honour Judge Mitchell in the Central London Civil Justice Centre dated 15 March 2013. The order made a third party liable for costs in accordance with a default costs certificate addressed to the claimant. Further orders were made on 16 April and 26 June 2013.

Lady Justice Arden initially refused permission to appeal on 15 October 2013. After receiving further submissions, she reconsidered whether the costs provision created an arguable procedural and statutory error. The central issue was whether the judge had wrongly treated the default costs certificate as binding on the third party and failed to exercise the relevant costs discretion.

1. Permission and scope. Lady Justice Arden recalled the earlier refusal of permission and granted permission to appeal against the order of 15 March 2013, so far as necessary against the later orders, on the costs ground identified in the ruling.
2. Real prospect of success. There was a real prospect of success in arguing that the judge had included an impermissible provision requiring the third party to pay the amount stated in the default costs certificate. The court rejected the submission that the appeal could succeed only if the appellant produced credible evidence that the certificate contained inflated costs. Where the complaint is procedural irregularity, that evidence was not necessarily required at the permission stage. The issue was for the court hearing the appeal.
3. Discretion under section 51(3). It was arguable that the judge had overlooked the discretion under section 51(3) of the Senior Courts Act 1981 to determine the extent of the third party’s liability for the action’s costs and the manner in which those costs should be established. It was also arguable that the judge wrongly assumed that the default costs certificate was binding on the appellant.
4. Opportunity to be heard and assessment. The proposed appeal raised arguable issues as to whether the appellant should have been given an opportunity to address the respondents’ costs schedule and whether the judge was entitled to make a summary assessment under the applicable procedural rules.
5. Other matters. The application to admit the email from the costs drafter was refused because he had not considered the papers. Directions were given for the appeal, including a time estimate of half a day, possible mediation, and any renewed evidence application.

The ruling granted permission only. It did not determine the appellant’s ultimate liability for costs or the amount payable.

1. Court of Appeal (Civil Division): Permission to appeal was initially refused on 15 October 2013. On 7 November 2013, Lady Justice Arden recalled that order and granted permission on the stated costs ground.
2. Central London Civil Justice Centre: His Honour Judge Mitchell made the relevant order on 15 March 2013, with further orders on 16 April and 26 June 2013. The order required the third party’s costs liability to accord with the default costs certificate.