Middlesbrough Football & Athletic Company (1986) Ltd v Earth Energy Investments LLP & Anor (Costs)

Permission to appeal should be refused where the proposed appeal has no real prospect of success. The court may assess costs summarily and take a broad-brush approach where the parties invite it to avoid detailed assessment. Costs normally follow the event, but the court may take account of the value and circumstances of the hearing when determining the appropriate order and basis of assessment.

Mr Millinder applied for permission to appeal a judgment refusing to set aside an enforcement-related order. He argued that the underlying commercial dispute concerning proofs of debt and contractual arrangements had not been determined. Middlesbrough contended that the judgment had addressed the issues properly before the court. The court also determined the costs of the substantive hearing and considered whether the costs should be assessed on the standard or indemnity basis.

1. Permission to appeal. The proposed appeal had no real prospect of success. The court had addressed the substance of Mr Millinder’s application and had explained why the winding-up of the relevant companies had prevented the underlying commercial and contractual disputes from being resolved at a substantive trial. Permission was therefore refused, although Mr Millinder remained entitled to apply to the Court of Appeal and was given 21 days from the hearing date to do so.
2. Costs. The unsuccessful party would ordinarily be ordered to pay the successful party’s costs. In this case, the substantive hearing had value because it enabled one judge to review the complex litigation history and documents comprehensively. Mr Millinder was accordingly ordered, pursuant to Part 44.2 of the Civil Procedure Rules 1998, to pay Middlesbrough’s costs.
3. The parties accepted that the costs should be assessed on the standard basis rather than by raising a further dispute about indemnity costs. Taking a broad-brush view, the court reduced the claimed costs of £44,836 and assessed them at £25,000, payable within two months.

The judgment concerned an application for permission to appeal from the court’s earlier judgment refusing to set aside the ECRO. Permission was refused, with liberty to apply to the Court of Appeal for permission.