Colwill v European Heritage Ltd

When permission to appeal is limited to a defined issue, disclosure must relate to that issue. Applications concerning collateral matters are irrelevant to the appeal and may be refused. Formal success on a narrow, promptly conceded point does not determine costs. The court may order the appellant to pay costs where the appeal was unnecessarily continued and irrelevant applications caused additional expense. These principles apply also where the appellant acts in person, particularly where the consequences of continuing have been clearly explained.

At trial in the Guildford County Court, HHJ Reid QC dismissed the appellant’s claim concerning rent and ordered him to pay costs. The judge also made a money judgment on a purported counterclaim, although the matter had been pleaded only as a set-off. Toulson LJ refused permission to appeal against dismissal of the claim and the costs order, but granted limited permission concerning the money judgment. The respondent promptly conceded that issue. The appellant nevertheless pursued disclosure of files relating to other matters and sought to reopen issues for which permission had been refused. The central questions concerned the relevance of that disclosure and the appropriate costs order.

The appeal was allowed by consent on the sole point for which permission had been granted. The trial judge had made a money judgment on a purported counterclaim, although the matter had been advanced only as a set-off. The merits appeal and the challenge to the trial costs order were outside the permitted appeal.

1. Scope of the appeal and disclosure. Disclosure sought in an appeal must relate to the subject matter of the appeal. The appellant’s requests concerned issues outside the only permitted ground and were therefore collateral and irrelevant. Davis LJ added that, if production had been sought and refused at trial, the proper course was to raise that refusal as a ground of appeal. If production had not been fairly and squarely sought at trial, the complaint came too late.
2. Costs. Applying the costs principles in Civil Procedure Rules Part 44, the court treated the appellant’s formal success as limited. The respondent had promptly conceded the permitted point, while the appellant unnecessarily continued the appeal and pursued wholly unjustifiable disclosure. That conduct caused the respondent needless costs. The fact that the appellant was a litigant in person did not alter the result, since the consequences had been drawn to his attention.
3. Disposition. The appeal was allowed by consent. The respondent was awarded its costs from 1 May 2013 up to and including the hearing.

1. Court of Appeal (Civil Division): Allowed the appeal by consent on the limited money-judgment issue and ordered the respondent’s costs from 1 May 2013.
2. Permission stage: Toulson LJ refused permission concerning dismissal of the claim and the trial costs order, but granted permission concerning the purported counterclaim. Aikens LJ later refused the appellant’s disclosure application.
3. Guildford County Court: HHJ Reid QC dismissed the claim, ordered the appellant to pay costs and made a money judgment on the purported counterclaim.