Peters v Peters

Permission to appeal requires a real prospect of success. The Court of Appeal is especially reluctant to interfere with a judge’s discretionary costs order and will do so only for an error of principle or a conclusion outside the generous ambit of reasonable decisions. In matrimonial proceedings, a failed application for permission to appeal will ordinarily be dismissed with costs on the standard basis. Indemnity costs may be appropriate where the application seeks to reopen an order already unsuccessfully appealed. Financial difficulty in obtaining a transcript does not, without more, justify setting aside a consequential costs order where the application failed for non-compliance with a direction. A complaint that the underlying judgment was wrong is irrelevant to the permission question.

This was an application by Raymond Peters for permission to appeal costs orders arising from contested matrimonial proceedings. On 30 October 2012, Her Honour Judge Waddicor refused permission to challenge an earlier order because it had already been appealed and dismissed, ordering indemnity costs. She also refused permission against a later order requiring payment of a lump sum, ordering standard-basis costs, but adjourned the challenge to a separate costs order pending service of a transcript. The applicant failed to serve it, and on 8 January 2013 the remaining permission application was dismissed with standard-basis costs. The central issues were whether the proposed challenges had a real prospect of success and whether the costs decisions disclosed an error of principle or fell outside the permissible discretionary ambit.

Permission to appeal was refused.

1. Permission will be granted only where the proposed appeal has a real prospect of success. It was particularly difficult to persuade the Court of Appeal to interfere with a discretionary costs order.
2. Intervention in a discretionary costs decision requires an error of principle or a conclusion outside the generous ambit within which such a decision may properly be reached.
3. The indemnity costs order relating to the first application was justified. The applicant was seeking permission to appeal an order against which a substantive appeal had already been brought and dismissed. The renewed application was therefore bound to fail and had an egregious feature warranting indemnity costs.
4. The standard-basis costs order relating to the second failed permission application was appropriate. In matrimonial proceedings, the normal order following a pursued but unsuccessful application for permission to appeal is dismissal with costs.
5. The consequential costs order made after the applicant failed to serve the directed transcript disclosed no reviewable error. His financial difficulty did not alter the fact that the respondent had incurred costs in resisting the permission application.
6. The applicant’s contention that the underlying matrimonial judgment was wrong was irrelevant to whether permission to appeal should be granted.

The court stated that, although the later costs order was not formally within the appellant’s notice, there was no prospect of interference with any of the relevant costs orders.

• Court of Appeal (Civil Division): On 28 November 2013, the application for permission to appeal the costs orders was refused.
• Brighton County Court: Her Honour Judge Waddicor refused the applicant’s two permission applications on 30 October 2012, ordered indemnity costs for the first and standard-basis costs for the second, and directed service of a transcript in relation to the remaining costs issue. Following non-compliance, the remaining application was dismissed on 8 January 2013 with standard-basis costs.
• Earlier procedural stage: An earlier appeal against the June 2010 order had been dismissed by His Honour Judge Hollis on 19 December 2010.