Robin Simon Graham Makin v Secretary of State for Justice

Permission to appeal requires a real prospect of success or another compelling reason. An appeal is generally a review of the lower court’s decision and succeeds only where that decision was wrong or unjust because of a serious procedural or other irregularity.

Appellate courts should not lightly interfere with case-management decisions. Factual findings may be challenged only where unsupported by the evidence or no reasonable judge could have reached them. Robust criticism, procedural disagreements, or adverse findings in earlier proceedings do not, without more, establish actual or apparent judicial bias.

The applicant sought permission to appeal seven orders made by a Costs Judge in detailed assessment proceedings arising from earlier claims against the Ministry of Justice. The proposed appeals challenged case-management decisions, findings of misconduct, costs reductions, procedural fairness, and alleged actual or apparent judicial bias.

The underlying claims had resulted in judgments on liability and costs in the High Court, including [2014] EWHC 1847 (QB) and [2014] EWHC 3934 (QB). The central questions were whether any proposed appeal had a real prospect of success or another compelling reason for being heard, and whether the challenged orders were wrong or unjust because of serious procedural irregularity.

1. The court refused all four applications for permission to appeal and certified each as totally without merit.

2. Under CPR r 52.6, permission requires a real prospect of success or some other compelling reason. Under CPR r 52.21, an appeal is ordinarily a review of the lower court’s decision and succeeds only if that decision was wrong or unjust because of a serious procedural or other irregularity.

3. The court applied the guidance in Mitchell v News Group Newspapers Ltd (Practice Note) [2014] 1 WLR 795 and Haringey LBC v Ahmed [2017] EWCA Civ 1861. Case-management decisions should not be disturbed lightly. Findings of fact justify appellate intervention only where unsupported by the evidence or where no reasonable judge could have reached them. The proposed challenges did not approach either threshold.

4. For apparent bias, the applicable test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias, following Porter v Magill [2002] 2 AC 357 and the review in Surrey Heath Borough Council v Robb [2020] EWHC 1952 (QB). The allegations of actual or apparent bias were unsupported. The judge’s robust criticism, factual errors alleged by the applicant, case-management decisions, and previous adverse findings did not establish bias.

5. Following Locabail (UK) Limited v Bayfield Properties Ltd [2000] QB 451, adverse comments made earlier in the same or a previous case do not, without more, require recusal. The judge was entitled to continue dealing with the related costs proceedings.

6. No serious procedural irregularity was shown. The applicant had adequate opportunities to present his position, and the written procedures and hearing arrangements adopted by the Costs Judge were justified in the circumstances.

• High Court (King’s Bench Division): Permission to appeal against seven orders of Costs Judge James was refused on 19 January 2023. Each application was certified as totally without merit.