Robert v Woodall

The costs of attending a renewed application for permission to appeal remain discretionary. Although a respondent will generally receive no costs for attending such an application, the court may make a different order where it is just in all the circumstances. Relevant considerations include the apparent weakness of the claim, whether its difficulties were identified at an early stage, the applicant’s persistence, and whether the respondent’s participation gave the applicant the benefit of an early substantive hearing. A failed cross-application to set aside permission will ordinarily attract a costs order against the unsuccessful applicant, particularly where discouraging such applications is desirable.

The appellant trustee in bankruptcy appealed against orders made by Mr Registrar Jones striking out claims under the Matrimonial Causes Act 1973. The claims sought financial relief against the surviving party to the bankrupt’s marriage and alleged that payments were transactions at an undervalue under the Insolvency Act 1986.

The court’s earlier judgment dismissed the trustee’s renewed application for permission to appeal and the respondent’s cross-application to set aside permission granted in relation to the insolvency claim and costs order. This judgment determined the consequential costs issues.

1. The trustee’s renewed application for permission to appeal was dismissed. Under paragraph 8.1 of CPR PD 52B, a respondent need not generally attend a permission application and will ordinarily receive no costs for doing so. That rule does not remove the court’s discretion. The court may order costs where it considers that just in all the circumstances.

2. It was just to award the respondent costs of attending. The trustee’s claim had already been struck out and permission had previously been refused on paper. The suggestion that a trustee could seek financial relief after the bankrupt’s death for the benefit of creditors was regarded as surprising. The difficulties had been identified at an early stage and had not been adequately answered. The respondent’s participation also resulted in a full argument and gave the trustee, in substance, an early hearing of the claim. Costs were summarily assessed at £3,750, allowing for apportionment with the cross-application.

3. The respondent’s cross-application to set aside the order granting permission failed and she was therefore ordered to pay the trustee’s costs of that application. The court also considered that discouraging such applications supported that order. Those costs were summarily assessed at £1,250.

4. The court declined to determine the respondent’s contention that the trustee’s conditional fee agreement and after-the-event insurance contravened section 58A of the Courts and Legal Services Act 1990, because the agreements had not been provided and the issue was unnecessary to decide.

5. The trustee was ordered to pay the respondent £2,500 within 14 days. The parties were directed to draw up a minute of order.

• High Court (Chancery Division): On appeal from orders of Mr Registrar Jones in bankruptcy. The trustee’s renewed application for permission to appeal and the respondent’s cross-application were both dismissed.