Norseman Holdings Ltd v Warwick Court (Harold Hill) Management Company Ltd

A judge is entitled to rely on an unequivocal undertaking offered by counsel on behalf of the solicitor said to have conduct of civil proceedings. The court need not investigate whether counsel misunderstood instructions. An appeal under Civil Procedure Rules 1998, rule 52.11(3), must challenge a decision of the lower court or establish a serious procedural or other irregularity causing injustice between the parties. A complaint about the recording of information in an order’s preamble may fall outside that jurisdiction. An alleged mistake affecting only a party’s relationship with its legal representative will ordinarily not constitute the required injustice. Where counsel has made a mistake, the appropriate route may be an application under rule 3.1(7). Proportionate costs and the overriding objective remain important considerations in interlocutory appeals.

Warwick Court claimed arrears of service charges and reserve fund contributions from Norseman Holdings Ltd. Earlier default judgments and costs orders had generated repeated procedural disputes. At a hearing before Her Honour Judge Davies, counsel for Norseman indicated that Dr Eiland would provide a written undertaking not to enforce a default costs order. The undertaking was recorded in the preamble to the resulting order.

Norseman later argued that no undertaking had been given, or that it had resulted from a mistake, and appealed on the ground for which permission had been granted. The central issues were whether the recorded undertaking was a decision capable of appeal, whether any mistake amounted to a serious procedural or other irregularity, and whether the alleged irregularity made the order unjust.

1. Appeal dismissed. The evidence showed that counsel had clearly and unequivocally offered an undertaking that Dr Eiland would set it out in writing. The draft order fairly reflected what had occurred at the hearing. The judge was entitled to rely on counsel’s statement; civil litigation would become unworkable if judges had to test whether counsel had misunderstood instructions.
2. The later suggestion that the undertaking resulted from a mistake was unsupported by evidence from either counsel or Dr Eiland. The absence of Dr Eiland from court did not prevent an undertaking being offered on instructions. Other representatives of Norseman were present, and the alleged mistake was unexplained.
3. The appeal could not succeed under Civil Procedure Rules 1998, rule 52.11(3)(a), because the lower court’s decision was not wrong. The complaint principally concerned a statement recorded in the preamble, rather than a decision made by the judge.
4. Even assuming a mistake, rule 52.11(3)(b) was not satisfied. The undertaking concerned enforcement of a default costs order whose validity remained unresolved. It was unlikely to cause practical prejudice, and any injustice to Dr Eiland would concern his relationship with his clients rather than the position between the parties. The alleged irregularity was therefore not serious or unjust in the relevant sense.
5. The proper procedural course, if counsel had made a mistake, was an application under rule 3.1(7). Allowing the appeal would have set aside the order and caused disproportionate delay and expense. The court also criticised the expenditure on an appeal concerning a modest underlying claim and referred to Mitchell v Newsgroup [2013] EWCA Civ 1537 as emphasising compliance with procedural rules and the need to avoid expensive interlocutory skirmishes.

• High Court (Queen's Bench Division): The appeal from the order of Her Honour Judge Davies at Luton County Court was dismissed. Permission to appeal had been granted on one ground only by Dingemans J on 12 September 2013.
• Luton County Court: Her Honour Judge Davies recorded in the preamble to the order that Dr Eiland would provide a written undertaking not to enforce the default costs order. The order followed a hearing on 21 January 2013.