Mulcahy v Castles Solicitors & Anor

In exercising its broad discretion over costs, a first-instance court may defer an interim payment to allow an unsuccessful party to seek permission to appeal. A wish to appeal, without more, is not generally a good reason for a stay. The successful party is normally entitled to the fruits of first-instance success unless enforcement would inhibit the appeal or render a successful appeal nugatory. An appellate court may reopen a final refusal of permission only where the cumulative requirements in CPR Part 52.17 are satisfied. A professional negligence appeal may also fail where the allegation was insufficiently pleaded, causation was not proved, or the alleged breach would not have materially affected the outcome.

The appellant brought professional negligence proceedings against her former solicitors concerning advice and conduct during ancillary-relief proceedings. Her claim was dismissed after a four-day trial in the Liverpool County Court, and she appealed against the order dismissing the claim and awarding costs.

Permission was granted on one ground concerning an alleged failure to inform counsel of a reduction in her income. She also sought to reopen refusals of permission concerning adjustments for her Asperger’s Syndrome and to challenge an interim payment of £35,000 on account of costs. The central issues were whether those matters justified appellate intervention and whether the alleged failure concerning income could have caused loss.

1. Interim costs payment. The application for permission to appeal the interim costs order was dismissed. The judge had a broad discretion. He had allowed time to seek a stay and had treated the proposed appeal as a relevant circumstance. An unsuccessful party is generally entitled to the fruits of success at first instance, including costs, unless enforcement would inhibit the appeal or make a successful appeal nugatory. A stay intended to protect that position should preferably endure, where appropriate, until the permission application is determined.
2. Reopening permission. The Court of Appeal refused to reopen the final refusal of permission concerning the appellant’s autistic condition. The cumulative requirements in CPR Part 52.17(1) and (2) were not satisfied. The court had considered the condition and made appropriate adjustments, and the appellant had received a fair opportunity to present her case.
3. Alleged failure to inform counsel. The appeal on the income issue failed for four independently sufficient reasons. The complaint had not been pleaded with sufficient specificity; the appellant’s evidence was inconsistent with the case advanced on appeal and did not establish causation; the evidence supported the solicitors’ account of the income figure; and the alleged short-term reduction in earnings lacked causative potency.
4. In ancillary-relief proceedings, future income potential is more important than isolated recent earnings. The relevant documents and counsel’s independent analysis focused on likely future income. There was no sufficient basis to conclude that disclosure of the short-term dip would have materially changed the settlement. The appeal was dismissed. Lady Justice Gloster and Lady Justice Arden agreed.

• Court of Appeal (Civil Division): The appeal from the Liverpool County Court was dismissed. The Court of Appeal also refused permission to appeal the interim costs order and refused to reopen the refusals of permission on the other grounds.
• Liverpool County Court: His Honour Judge Wood QC dismissed the professional negligence claim by order dated 5 April 2012 and ordered the appellant to pay the defendants’ costs, including an interim payment of £35,000 on account.