Parkin & Anor v Dartford County Court & Ors (Rev 1)

Judicial review of a refusal by a circuit judge to grant permission for a first appeal from a procedural costs order is available only in exceptional circumstances. The claimant must show either a fundamental procedural departure or complete disregard of duty, or satisfy the analogous Cart criteria: an arguable error with a reasonable prospect of success, error in both relevant decisions, and an important point of principle or another compelling reason.

A refusal of permission must engage with the material grounds advanced. An unparticularised assertion that the lower decision was justified is inadequate where the proposed appeal has substantial prospects. The refusal decisions were quashed and the permission application was remitted for reconsideration.

The claimants challenged three orders made in county court proceedings concerning disputed rights of way. The principal challenge concerned a costs order made after the parties had compromised the underlying claim and agreed a new route for a right of way.

A deputy district judge awarded the interested parties substantial costs, including indemnity costs under Civil Procedure Rules 1998, rule 44.3(8), following a Part 36 offer. A circuit judge refused permission to appeal without addressing the claimants’ principal arguments and later refused an oral reconsideration on the mistaken basis that the application was out of time.

The Administrative Court considered whether the refusal decisions met the exceptional threshold for judicial review and whether the proposed county court appeal had reasonable prospects of success.

1. Permission and extension of time. The time for filing the judicial review claim was extended to 16 August 2012. Permission to apply for judicial review was granted.
2. Applicable threshold. Judicial review of a refusal of permission to appeal is exceptional. The circumstances identified in Sivasubramaniam v Wandsworth County Court [202] EWCA Civ 1355 and Gregory v Turner [2003] EWCA Civ 183 include a fundamental departure from correct procedure or complete disregard of duty. The analogous criteria in R (Cart) v The Upper Tribunal [2011] UKSC 28 also applied: the proposed appeal had to be arguable with a reasonable prospect of success, both relevant decisions had to be arguably wrong, and the case had to raise an important point of principle or present another compelling reason.
3. Prospects of appeal. The costs decision failed to address material matters. It treated the claim compromised by consent as if it were the pleaded claim, failed to construe the compromise and its costs consequences, and relied on a Part 36 offer relating to a different claim. The claimants therefore had good prospects of obtaining an order setting aside the costs order and seeking no order as to costs.
4. Refusal decisions. The first refusal was inadequately reasoned. It merely asserted that there was sufficient material to justify the costs order and did not address the principal grounds of appeal. The second refusal rested on the erroneous belief that no timely request for reconsideration had been made. Both decisions were procedurally defective and were quashed.
5. Consequences. The county court proceedings, including enforcement and charging-order proceedings, were transferred to the Central London County Court. A specialist Chancery judge was directed, if possible, to hear the permission application and any appeal as a rolled-up hearing. The stay on enforcement was continued. There was no order as to costs between the claimants and Dartford County Court; costs against the interested parties were reserved.

• Dartford County Court: Deputy District Judge Wright made a costs order dated 25 March 2011. Judge Simpkins refused permission to appeal on 12 October 2011 and refused reconsideration on 22 December 2011.
• High Court (Administrative Court): The refusal decisions were quashed. The county court permission application was directed to be reconsidered by a circuit judge.