Robin Simon Graham Makin v Secretary of State for Justice

The High Court refused permission to appeal four separate applications seeking to challenge seven costs orders made by Costs Judge James. The court applied the permission test in CPR r 52.6 and the limited scope of review in CPR r 52.21, and affirmed the well-established appellate reluctance to interfere with case management decisions unless they were wrong or unjust. The judge found no arguable basis to impugn the Judge's factual findings, including extensive findings of misconduct under CPR Part 44.11, and rejected allegations of actual or apparent judicial bias.

Key legal principles: (i) permission to appeal will be granted only if an appeal has a real prospect of success or there is some other compelling reason (CPR r 52.6); (ii) an appeal under CPR r 52.21 is confined to a review of the lower court's decision and will only succeed if it was wrong or unjust because of a serious procedural irregularity; (iii) appellate courts will not lightly overturn case management decisions; and (iv) factual findings will only be disturbed if unsupported by evidence or no reasonable judge could have reached them.

The court therefore dismissed each application for permission to appeal and certified each as totally without merit.

This judgment determines four applications for permission to appeal made by the applicant (a solicitor-advocate and principal of his firm) against seven orders of Costs Judge James arising from detailed assessment proceedings and earlier substantive and costs judgments of Jeremy Baker J. The underlying claims were data protection and related claims against the Ministry of Justice, originating in County Court proceedings (Claims 6LV, 7LV and E11). Following trial and costs judgments in 2014, a protracted and contested process of exchanging bills, applications for default costs certificates, applications to set them aside, and multiple interlocutory orders ensued.

(i) Nature of the applications: the four applications sought permission to appeal a series of orders made by the costs judge between October 2020 and July 2021, including provisional assessments, orders addressing alleged procedural non-compliance, orders dealing with requests for oral review, and an order giving effect to the judge's extensive findings of misconduct made under CPR Part 44.11.

(ii) Issues framed by the court: the principal issues were whether there was an arguable case of (a) actual or apparent judicial bias, (b) serious procedural irregularity in the costs proceedings, or (c) legal/error of law or error of fact in the judge's decisions (including the factual findings underpinning the Misconduct Judgment and reductions to the claimant's assessed costs). The court also considered the proper standard of appellate review for case management decisions and factual findings.

(iii) Court’s reasoning and outcome: having reviewed the judge's orders, written reasons, transcripts, the parties' submissions and the long documentary history, the court concluded there was no arguable bias and no serious procedural irregularity. The High Court endorsed the legal tests relied upon (including the Porter v Magill fair-minded and informed observer test) and the limited scope of appellate review for case management decisions and factual findings. The court found the costs judge to have acted fairly and to have given detailed reasons for the misconduct findings; the factual findings were supported by the record and not ones that no reasonable judge could reach. On that basis the court refused permission to appeal each of the four PTA applications and certified each as totally without merit. The anonymity order then in place was noted and left undisturbed in this judgment.

Permission to appeal in relation to each of the four applications is refused and each application is certified as totally without merit. The court concluded there were no arguable grounds of actual or apparent bias, no serious procedural irregularity, and no error of law or fact sufficient to give a realistic prospect of success on appeal. The judge's case management decisions and factual findings, including findings of misconduct under CPR Part 44.11, were within the permissible ambit of judicial discretion and were supported by the record.

These applications are for permission to appeal orders of Costs Judge James dated 23 October 2020 (two orders), 16 November 2020, 23 November 2020, 4 May 2021, and 12 July 2021. The underlying substantive proceedings were tried before Jeremy Baker J, whose decisions appear at [2014] EWHC 1847 (QB) (substantive judgment) and [2014] EWHC 3934 (QB) (costs judgment). Parts of the interlocutory history include refusal of earlier permission applications by Johnson J (28 August 2020) and dismissal by Cavanagh J of an injunction application (13 September 2020). The four PTA applications were linked and case-managed (orders by Stewart J and directions by Eady J) and were considered by Mr Justice Murray on 17 November and 8 December 2021, leading to refusal of permission and certification as totally without merit on 19 January 2023.