Handley & Anor v Lake Jackson Solicitors (a firm) & Ors

Where a county court judge has heard an appeal, article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 sends an appeal from every decision made on that hearing, including a decision on the costs of that appeal, to the Court of Appeal.

The second-appeal restriction in section 55 of the Access to Justice Act 1999 and CPR 52.13 applies only to an appeal concerning the county court’s decision on the matter originally appealed. It does not apply to an appeal concerning the costs of the county court appeal, for which the ordinary permission test applies.

There is no hearing of an appeal where permission was refused or the appeal was dismissed following withdrawal. An ensuing costs appeal lies to the High Court.

Three applications raised the destination of an appeal from costs decisions made after county court appellate proceedings.

• In Christie Owen & Davies Ltd v Awan & Awan, the county court allowed a restored appeal against orders for sale, set them aside, and made consequential costs orders.
• In Lopes v London Borough of Croydon, a statutory homelessness appeal was withdrawn by consent. The county court later awarded the applicant 85% of her costs.
• In Handley v Lake Jackson, a county court judge had dismissed an appeal from a district judge and made costs orders. He later refused to set aside those orders.

The common issue was whether an appeal from such a costs order lay to the Court of Appeal or the High Court, and whether the second-appeal test applied.

1. Article 5 governed costs decisions made after a county court appeal had actually been heard. Its language was wide and did not confine the Court of Appeal’s jurisdiction to the merits decision. A county court judge’s decision on the costs of the appeal was a decision made “on hearing the appeal”. The contrary analysis in Rubric Lois King v Lane was erroneous.

2. The second-appeal test had a narrower operation. Section 55 of the Access to Justice Act 1999 concerned the county court’s decision on the matter brought before it on appeal: ordinarily, the validity of the district judge’s decision. It did not extend to the incidence of the costs of the county court appeal. CPR 52.13 had to be read consistently. Permission to appeal a costs decision could therefore be granted under the ordinary test by either the county court judge or the Court of Appeal.

3. A hearing of the appeal was essential to article 5. A refusal of permission, or dismissal following an appellant’s withdrawal, was not a hearing of the appeal. In that situation, a costs appeal lay to the High Court. Once an appeal had been heard, however, article 5 continued to apply even if costs were decided later in writing after submissions.

4. Applying those conclusions, the Awan costs appeal lay to the Court of Appeal and permission was granted on specified costs issues. The Lopes costs appeal did not lie to the Court of Appeal because the appeal had been withdrawn without a hearing; it was remitted to the High Court, where permission was granted. Lake Jackson’s appeal lay to the Court of Appeal, but permission was refused. An appeal did not itself operate as a stay of the costs orders.

• Court of Appeal (Civil Division): In the present combined decision, [2016] EWCA Civ 465, the court determined the proper appellate destination and the applicable permission test for the three costs appeals.
• County Court—Awan: HHJ Tolson QC allowed the restored appeals against orders for sale and made costs orders on 27 July 2015.
• County Court—Lopes: HHJ Bailey permitted withdrawal of the section 204 appeal and later awarded the applicant 85% of her costs.
• County Court—Handley: HHJ Birtles dismissed the merits appeal, made costs orders, and refused to set aside the subsequent costs order.