Christopher J Moon v Sandy Deane

Permission to appeal a discretionary costs decision should be refused where none of the proposed grounds has a realistic prospect of success. An appellate court will interfere with a refusal of an adjournment only where no reasonable judge, properly directing themselves as to the law and facts, could have reached that decision. Costs remain a discretionary matter. A successful party is not automatically deprived of costs merely because mediation was offered or refused, particularly where the claim had an all-or-nothing outcome and the judge considered the mediation issue. Complaints concerning the underlying merits or trial conduct cannot be pursued through an appeal limited to costs.

Dr Moon renewed his application for permission to appeal against District Judge Johnson’s order of 20 September 2021 concerning the costs of Sandy Deane’s successful claim to remove him as sole executor and trustee of his father’s will. The District Judge ordered Dr Moon to pay Deane’s costs, assessed summarily at slightly more than £30,000, on the standard basis.

The proposed grounds concerned refusal of an adjournment, the conduct and transparency of the summary assessment, the alleged failure to give sufficient costs significance to mediation offers, and the factual basis for Dr Moon’s removal. Permission had previously been refused on paper. The issue was whether any proposed ground had a realistic prospect of succeeding on an appeal against the costs decision.

1. Permission refused. None of the proposed grounds, nor any other ground raised, had a realistic prospect of success.
2. Refusal of an adjournment is discretionary. An appellate court should interfere only where the decision is one that no reasonable judge could have reached, properly directing themselves as to the law and facts. The hearing was effective, there was sufficient time, and no material prejudice arose from receipt of a short skeleton argument on the hearing day.
3. The summary assessment was not defective because the order did not record every adjustment to the schedule of costs. The transcript showed the items reduced and the reasons for doing so. The exercise was to reduce the claim to a reasonable and proportionate amount.
4. The District Judge did take the mediation issue into account. Although the courts generally support mediation, an unreasonable refusal to mediate does not automatically justify depriving an entirely successful party of costs. The significance of mediation is fact-sensitive, and is more commonly reflected in costs where the refusing party loses or the outcome is divided. The costs decision remained discretionary.
5. Complaints about the underlying trial, the finding of fault, the removal as executor and trustee, and the conduct of Deane, her solicitors or the replacement executors were irrelevant to an appeal confined to the costs order.

The application for permission to appeal was therefore refused.

• High Court (Chancery Division): Permission to appeal against District Judge Johnson’s costs order of 20 September 2021 was previously refused on paper and was refused again on renewal.
• County Court: Sandy Deane’s claim to remove Dr Moon as executor and trustee succeeded. District Judge Johnson ordered Dr Moon to pay costs, assessed summarily at slightly more than £30,000.
• County Court appeal proceedings: Dr Moon’s appeal against the substantive removal decision was struck out by orders of His Honour Judge Cadwallader in August and September 2021.