Parkinson, R (on the application of) v Royal Bolton Hospital NHS

For a second appeal, the applicant must show both a real prospect of successfully challenging the order and a compelling reason for the Court of Appeal to hear it. A costs order requiring payment of all costs incurred before an amendment should not be imposed merely to penalise delay. The court should apply the established principle that such an order is appropriate only where it can confidently conclude, before trial, that the unamended claim could not have succeeded. Failure to apply that principle may amount to an error of principle and make the exercise of costs discretion properly questionable. At the permission stage, a provisional view that the first appeal may have been plainly wrong can justify granting permission; the merits remain for the full court.

The claimant brought a clinical negligence claim against two defendants. She applied to amend the claim by adding a sexual-assault allegation and further particulars of negligence. The District Judge refused the sexual-assault amendment, allowed the negligence amendments, and ordered her to pay all costs incurred in the action up to that point.

On appeal, His Honour Judge Armitage upheld the order. The claimant applied to the Court of Appeal for permission to bring a second appeal. The central issues were whether the costs order reflected a failure to apply the governing principle concerning amendments and whether the second-appeal permission threshold was met.

1. Permission threshold. The application was for permission to bring a second appeal. Under Civil Procedure Rules Part 52.13, the applicant had to show both a real prospect of successfully appealing the order and a compelling reason for the Court of Appeal to hear the appeal.
2. Costs following amendment. The District Judge had allowed amendments adding further particulars of negligence but ordered the claimant to pay all costs up to that stage. The Court of Appeal accepted that an order of this kind should be made only where the court can confidently conclude, before trial, that the claim could not have succeeded without the amendments. The order should not instead be used simply to penalise delay. The principle was identified by reference to Chadwick v Hollingsworth [2010] EWHC 2718 (QB) at [24].
3. Error in principle. The District Judge appeared not to have applied that approach and instead appeared to have penalised the claimant for delay. The same impression applied to the first appeal. The consequences could be unjust: even if the claimant succeeded on the unamended claim, she might be unable to recover substantial pre-amendment costs, including expert-report costs.
4. Permission granted. The case potentially fell within the category identified in Uphill v BRB [Residuary) Limited [2005] EWCA Civ 60 at paragraph 24, namely a case involving an error of principle and an order that was properly questionable as an exercise of discretion. If that view was correct, the first appeal had been decided in a plainly wrong manner. Permission to appeal was therefore granted. The Court of Appeal expressly left the merits for determination by the full court.

1. Court of Appeal (Civil Division): On the application for permission to bring a second appeal, permission was granted: [2015] EWCA Civ 1529.
2. His Honour Judge Armitage: Heard the claimant's appeal from the District Judge's order and made a decision which the claimant sought to challenge by second appeal.
3. District Judge Harrison: Refused the proposed sexual-assault amendment, allowed further negligence particulars, and ordered the claimant to pay all costs incurred up to that point.