Deutsche Bahn AG & Ors, Re

Where an oral application for permission to appeal is heard on notice to the respondent, the court does not thereby direct the respondent to file submissions or attend. Such an application may fall within PD52C para 20(1), under which respondents will not normally receive their costs. The court retains a discretion to depart from that position. Costs may be awarded where the respondent’s submissions materially assist the court and avoid substantial further litigation. Submissions ordinarily not recoverable may be included where they also serve as the respondent’s skeleton argument for the oral hearing.

The defendant appellants sought permission to appeal from the Competition Appeal Tribunal’s decision in [2013] CAT 18. The Court of Appeal considered the respondents’ entitlement to costs arising from the unsuccessful permission applications. The issues included the effect of an oral hearing directed to be on notice, the court’s discretion to depart from the usual costs position, the recoverability of the respondents’ written submissions, and the appropriate liability of the appellant groups.

Disposition. The respondents were awarded £25,000, net of VAT, for the costs of and occasioned by the unsuccessful applications for permission to appeal. The appellants were made jointly and severally liable.

1. An oral application for permission to appeal directed to be heard on notice to the respondent is not dealt with by PD52C para 20(2). In that situation, the court does not direct the respondent either to file submissions or to attend the hearing. The application may instead fall within para 20(1), so that an order for the respondent’s costs will not normally be made.
2. The normal position is discretionary. The court has power to depart from it and award the respondent’s costs where the circumstances justify doing so.
3. The respondents’ written and oral submissions were of substantial assistance in understanding the appellants’ arguments. They enabled the court to reach a confident view that the arguments would fail and may have avoided the costs of a substantial substantive appeal. The complexity and commercial significance of the litigation supported an award of costs.
4. Costs of submitting Jolly v Jay submissions will ordinarily be unrecoverable. Here, however, those submissions also operated as the respondents’ skeleton argument for the oral hearing and were therefore recoverable.
5. The court rejected separate allocation of liability between the appellant groups. The appellants had sought to be treated alike for the permission applications, and there was no basis for exempting any group from the usual order making them jointly and severally liable.

• Competition Appeal Tribunal: decision under appeal, reported at [2013] CAT 18.
• Court of Appeal (Civil Division): considered costs arising from the unsuccessful permission applications and awarded the respondents £25,000 net of VAT, with joint and several liability.