Dial Partners LLP & Anor v Eastern Airways International Ltd & Ors (Rev 1)

For an appeal to be in time, the relevant date is generally the date on which the lower court’s decision is formally announced, rather than the later date of the sealed order. Where an extension of time may be required, the extension issue must be resolved before permission to appeal is granted. A court may nevertheless consider whether permission should be granted where the proposed appeal has a real prospect of success, while directing a rolled-up hearing to determine extension, permission and the merits. On a costs appeal, the appellant must show that the decision fell outside the generous ambit of the costs judge’s discretion, including by demonstrating that the discretion was exercised on a wrong basis or not at all. An attempt to re-argue a case outside the residual Barrell jurisdiction does not justify permission to appeal.

The appellants sought permission to appeal from an order made by Master James in the Senior Court Costs Office concerning the costs of a detailed assessment. The Master had disallowed the claimants’ profit costs but allowed their disbursements, and had ordered them to pay the defendants’ costs of a later reconsideration. Nicol J had refused permission on paper.

The appellants argued that their notice was in time because the Master had repeatedly extended time while reconsidering her decision and finalising the costs order. They also contended that the Master had exercised her costs discretion on an improper basis by penalising the absence of a counter-offer and by using proportionality to determine the incidence rather than the amount of costs. The central issues were whether an extension of time was required, whether permission should be granted, and whether the challenge to the costs order had a real prospect of success.

1. Timing of the appeal. Under Civil Procedure Rules 1998, r 52.12(2)(b), the relevant decision date is ordinarily the date on which the lower court’s decision is formally announced, not the date on which the formal order is issued. The initial decision depriving the appellants of profit costs was delivered orally on 28 February 2018. Permission was sought immediately, but no extension application was made at the same time as required by Practice Direction 52B, para 3.1.
2. Extension and permission. The Master subsequently acted pragmatically in extending time while reconsidering her decision and finalising the order. It remained arguable that those steps did not comply precisely with the procedural rules. The parties’ common understanding, and the defendants’ correspondence accepting that time ran from sealing of the order, were relevant but did not determine the issue. The extension question therefore had to be heard before permission could be finally granted.
3. Prospects of appeal. Although costs decisions attract a generous ambit of discretion, an appeal may succeed where the discretion was exercised on a wrong basis or not at all. The proposed grounds raised a real prospect of showing that the Master had treated the absence of a counter-offer as determinative, equated non-negotiation with ignoring communications, or confused the quantum of costs with their incidence. The appeal was therefore not bound to fail.
4. Reconsideration costs. The request for reconsideration fell outside the residual Barrell jurisdiction. It was an impermissible attempt to re-argue the case. The order requiring payment of the defendants’ costs of that reconsideration stood, with no permission to appeal on that issue.
5. The appropriate course was a rolled-up hearing before the appellate judge to determine whether an extension was required or should be granted, whether permission should be granted, and, if so, whether the appeal should succeed.

• Senior Court Costs Office: Master James ordered that the appellants’ profit costs be withheld, while allowing disbursements, and ordered payment of the defendants’ costs of reconsideration.
• High Court (Queen’s Bench Division): Nicol J refused permission on paper. Mr Justice Freedman directed a rolled-up hearing to determine extension of time, permission and, if permission were granted, the appeal. He refused permission in relation to the reconsideration costs.