Mr H TV Ltd v Archerfield Partners LLP

Permission to appeal from a costs decision should be granted only where the proposed appeal has a real chance of success. A challenge to factual findings faces a difficult burden, including where the findings depend substantially on documentary interpretation. The appellate court should not interfere merely because another interpretation is arguable. Where the first-instance judge has considered the documents as a whole, evaluated the evidence and reached a conclusion reasonably open to her, the finding is not impeachable. A client’s informed approval of the amount of solicitor-and-client costs may justify dispensing with detailed assessment under Part 46.9 of the Civil Procedure Rules 1998.

The claimant sought permission to appeal from Master McCloud’s decision that detailed assessment of its solicitors’ costs could be dispensed with because the claimant had given informed approval to costs of £3.6 million. The proposed appeal challenged the Master’s interpretation of settlement documents and her conclusion that the settlement negotiations proceeded on the basis that £3.6 million represented costs, with the balance representing damages. Five grounds were advanced, although ground 4 was accepted to contain the substance of the proposed appeal. The central issue was whether there was a real chance that an appellate court would find the Master’s factual and documentary conclusions unsustainable.

1. Permission test. Permission to appeal was refused. The relevant question was whether the claimant had a real chance of successfully persuading the appellate court that the Master’s decision was wrong.
2. Findings of fact and documents. Although the challenge principally concerned documentary interpretation, the Master had been entitled to assess the documents together with the oral evidence. She accepted the defendant’s evidence and rejected the claimant’s evidence. Her conclusion that the negotiations proceeded on the understanding that £3.6 million of each global settlement sum represented costs was plainly open to her.
3. The documentary sequence supported the Master’s conclusion. Earlier offers separated damages and costs. Subsequent negotiations, including the claimant’s instruction to offer £8.6 million split as £5 million damages and £3.6 million costs, showed that the global offers retained that underlying allocation. The later use of a global figure did not alter the substance of the agreement.
4. The court considered that a contrary interpretation would arguably have been perverse. There was therefore no real chance of successfully challenging the Master’s decision.
5. The point based on Griffiths v Evans [1953] could not assist because any presumptions concerning disputes between solicitors and clients were overtaken by the Master’s actual findings of fact. The remaining grounds did not affect the result.

Permission to appeal was refused.

The judgment concerned an application for permission to appeal from Master McCloud’s decision dated 21 October 2019. Permission had previously been refused by Stacey J, but the application was reconsidered de novo on the merits. The High Court refused permission.