Ghadami v Bloomfield & Ors

Permission to appeal against a discretionary costs or case-management order should be refused where the lower court heard full argument, considered the relevant matters, and the proposed appeal has no real prospect of success. The proportionality of pursuing an appeal is also relevant, particularly where the costs at stake are modest compared with the costs already incurred in the litigation. An appellate court should also refuse a disclosure application where the material was not necessary for the lower court’s decision and the application ought properly to have been made below.

The proposed appellant sought permission to appeal against a costs decision made by Barling J in the High Court Chancery Division on 25 July 2014. The judge had made no order for costs on applications involving the claimant and several defendants, despite criticisms of both sides’ conduct, including correspondence sent to the court without copying the claimant.

The proposed appellant also sought disclosure from the defendants’ solicitors of correspondence with the court. The central issues were whether the costs decision disclosed an arguable basis for appeal and whether the Court of Appeal should order disclosure at this stage.

Disposition. Permission to appeal was refused and the application was dismissed. The application for disclosure was also refused.

1. Costs and case-management discretion. The High Court judge’s decision was an exercise of discretion concerning costs and case management. The judge had heard full argument and was aware both that the defendants’ private-hearing application had been wasted and that correspondence had wrongly been sent without being copied to the claimant. There was no basis for concluding that the judge had overlooked material matters.
2. Permission to appeal. The proposed appeal had no real prospect of success. The Court of Appeal would not interfere merely because the proposed appellant disagreed with the discretionary outcome. The costs in issue were approximately £5,100, and, in the context of the substantial costs already incurred in the litigation, there was no proportionate reason for the appeal to proceed.
3. Disclosure. The disclosure sought concerned correspondence relating to the applications that had been before Barling J. Even if the Court of Appeal had jurisdiction to entertain the request, the application should have been made to the master. The correspondence was not necessary material for the High Court hearing, and Barling J was better placed than the Court of Appeal to assess its significance when exercising his costs discretion.
4. The final order was that the proposed appeal had no real prospect of success and the application was dismissed.

1. High Court (Chancery Division): Barling J made no order for costs on applications heard on 25 July 2014.
2. Court of Appeal (Civil Division): Permission to appeal was refused. The disclosure application was also refused, and the application was dismissed.