Rees & Ors v Commissioner of Police for the Metropolis

Permission to appeal to the Supreme Court should be refused where no point of law arises and the decision turns on applying settled principles to undisputed facts. Parties who win important issues may receive all their costs, even if they withdraw parts of their case. An issues-based order is not required in every case. Unless litigation conduct warrants indemnity assessment, costs should be assessed on the standard basis. An appellate court should not determine an interim payment of damages without an antecedent first-instance decision, particularly where significant factual and legal issues would have to be resolved on an unheralded application and summary written submissions.

Three appellants brought appeals from proceedings in the Queen’s Bench Division before Mr Justice Mitting, identified by claim numbers HQ13X02927 and HQ14X01020. Following the Court of Appeal’s judgments delivered on 5 July 2018, consequential questions arose concerning permission to appeal to the Supreme Court, High Court costs, the basis of costs assessment, payments on account, and an interim payment of damages. The court was required to determine the appropriate costs orders and whether the interim damages application could properly be decided at appellate level.

The court gave short reasons on consequential matters following its earlier judgments.

1. Permission to appeal. Permission to appeal to the Supreme Court was refused. The decision involved no point of law, still less a point of law of public importance. The court had respectfully disagreed with the judge only on the application of settled principles to undisputed facts.
2. High Court costs. The respondent was to pay the third appellant’s costs, subject to assessment and the dispute about the basis of assessment. The first and second appellants had succeeded on the important issues. Their costs were therefore awarded in full, subject to assessment, despite their having withdrawn parts of their case below. The circumstances did not readily justify an issues-based costs order.
3. Basis and payment on account. The respondent’s conduct of the litigation did not warrant indemnity assessment, notwithstanding the egregious conduct of DCS Cook. Costs were to be assessed on the standard basis. An agreed payment on account of £175,000 was recorded for the third appellant. The first and second appellants were each awarded £112,500 on account, making £225,000 in total.
4. Interim damages. No order was made for an interim payment of damages. Such an application was inappropriate in the Court of Appeal without an antecedent High Court decision from which an appeal was brought. It would also have been wrong to determine significant factual and legal issues on an unheralded application supported only by summary written submissions.

The sealed order was to be issued with the reasons.

• Court of Appeal (Civil Division): Following its earlier judgments, the court refused permission to appeal to the Supreme Court, made costs and payment-on-account orders, and declined to order an interim payment of damages: [2018] EWCA Civ 1699.
• High Court of Justice, Queen’s Bench Division: The appeals arose from proceedings before Mr Justice Mitting in claims HQ13X02927 and HQ14X01020.