Bes Commercial Electricity Limited & Ors. v Cheshire West and Chester Council

The court may refer a costs-budget departure application to a costs judge where that judge will have fuller information and the referral is more expedient. Permission to appeal requires a real prospect of success or another compelling reason under CPR 52.6. Challenges to factual findings will not meet that threshold merely by rearguing the evidence. Whether communications reach the minimum level of seriousness required to engage Article 8 depends on the facts, including their scope, specificity, recipients and consequences.

Following a substantial High Court trial, the defendant sought permission to depart from its costs budget for the pre-trial review, trial preparation and trial phases. The claimants opposed the application and argued that the court lacked jurisdiction, or that the matter belonged before the costs judge.

The claimants also sought permission to appeal on challenges concerning the evidence and conduct of Mr Bourne, the alleged interference with Article 8 rights under the Human Rights Act 1998, and untargeted malice. The court determined the consequential applications.

1. The court did not decide whether it had jurisdiction to determine the defendant’s application to depart from its costs budget. It was more expedient for the costs judge to determine the issue because that judge would have fuller information about the extended pre-trial review, trial preparation, bundles, applications, documents and costs consequences. The application was therefore left to the costs judge.
2. The permission threshold under CPR 52.6 was a real prospect of success or some other compelling reason for the appeal to be heard. The proposed grounds had to be assessed in the context of the findings as a whole, including the extensive evidence and the judge’s findings about Mr Bourne.
3. The Article 8 ground disclosed no point of law requiring further elucidation. The communications were limited, insufficiently specific, directed to persons already involved in seeking redress or providing statements, and not made to the media or an uninformed section of the public. There was also no identified loss or evidence of significant effect. Taken together, the communications did not reach the minimum level of seriousness required to engage the Convention.
4. The challenge to the findings on untargeted malice likewise involved factual matters. The court had considered the relevant communications and nothing had been identified that compromised the investigation. The principles concerning appellate challenges to factual findings in Watson Farley and Williams v Ostrovitzky [2015] EWCA Civ 457, citing McGraddie v McGraddie [2013] UKSC 58 and Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5, applied.
5. Permission to appeal was refused.

This was a first-instance High Court judgment dealing with consequential applications following the trial judgment. No earlier appellate decision is stated.