GENIUS SPORTS TECHNOLOGIES LIMITED

Permission to appeal a costs cap is unlikely to be granted where the challenge concerns the level of a case-management cap and the judge properly considered the parties’ cost estimates and competing future burdens. An appellate court will not ordinarily interfere merely because it might have assessed proportionality or the parties’ preparation burdens differently. The question is whether the case-management decision was one the judge was entitled to reach on the material before the court and whether there are reasonable prospects of it being overturned.

The claimants applied for permission to appeal a costs management order imposing a £5 million cap on each side’s future costs. The order did not affect costs already incurred. The claimants accepted that a cap was appropriate but challenged its level on three grounds, including alleged failure to give weight to their detailed estimate of future costs and an allegedly erroneous assessment that the parties faced equal burdens in preparing for trial.

The application was determined by the judge who had made the order, following a compressed case management hearing. The central issue was whether the proposed grounds disclosed a realistic prospect that the level of the costs cap would be overturned on appeal.

1. Application refused. The judge concluded that the grounds of appeal had no reasonable prospects of success and that permission should be refused.
2. The judge had considered the claimants’ detailed estimate of future costs. That estimate was central to the decision, but the judge concluded that the proposed expenditure was excessive and disproportionate. The claimants’ disagreement with that assessment did not establish an appealable error.
3. The judge was entitled to conclude, on the material before him, that the parties faced equal future burdens in preparing for trial. The point had been addressed in the claimants’ submissions, even though the judge had reached a different view.
4. That conclusion would not in any event have justified increasing the claimants’ cap. The caps had been considered separately, although the same £5 million figure was imposed on each side. The judge noted that a lower cap for the defendants might have been defensible because their budget was below £5 million, but declined to impose one without a fair opportunity for submissions.
5. The order was a case-management decision. The grounds did not show a realistic basis for appellate interference with the exercise of that discretion.

The judgment concerns an application for permission to appeal the judge’s own costs management order. No prior appellate decision is stated.