Paul Yerbury v Azets Holdings Limited

Permission for a further appeal is required from the Court of Appeal where the proposed appeal would be a second appeal. Permission should not be granted where the further appeal has no real prospect of success. Costs generally follow the event, and the court may order an interim payment on account where costs are subject to detailed assessment. The default position under the Civil Procedure Rules 1998 is not displaced merely because the unsuccessful party alleges that the proceedings were caused by the successful party’s conduct.

The judgment concerned consequential matters following the dismissal of the appellant’s substantive appeal against Azets Holdings Limited. The appellant sought permission to bring a further appeal and argued that there should be no order as to costs, alleging failures concerning the respondent’s code of conduct and the identification of the correct defendant.

The respondent opposed permission, maintained that costs should follow the event, and sought an interim payment on account. The court considered the applicable provisions governing second appeals, costs, detailed assessment and interim payments.

1. Further appeal. The proposed appeal would be a second appeal in all respects. Under CPR r.52.7, permission was required from the Court of Appeal. In any event, having regard to the reasons given for dismissing the substantive appeal, the court considered that a further appeal would have no real prospect of success.
2. Costs. The respondent had succeeded in resisting the appeal. There was no reason to depart from the general rule that costs follow the event. The appellant’s allegations that the respondent had breached its code of conduct or had deceived him did not justify a different order. The Master had found that the respondent was under no duty to nominate the correct defendants or state expressly that it was not the proper defendant.
3. Interim payment. Where costs are subject to detailed assessment, an interim payment on account is the default position under CPR r.44.2(8). The appellant had provided no specific reason or submission as to amount that justified departure from that position. A payment on account of £10,000 was therefore ordered as a reasonable minimum estimate, allowing generous room for argument.
4. The order included a stay in respect of costs if an application for permission to appeal was made to the Court of Appeal. Any continuation of the stay after permission was granted would be a matter for that court.

• High Court (King’s Bench Division): The substantive appeal was dismissed. This consequential judgment ordered the appellant to pay the respondent’s costs, subject to detailed assessment, and to make a £10,000 payment on account.
• Earlier proceedings: The Master held that Azets Holdings Limited was under no duty to nominate the correct defendants or state explicitly that it was not the proper defendant. The appellant was not granted permission to appeal on estoppel and representation issues.