PERMISSION TO APPEAL REFUSED IN EDWARDS COSTS CASE: THE TEST FOR A SECOND APPEAL WERE NOT SATISFIED

In May I reported on the decision in Edwards (& others) -v- Slater and Gordon UK Limited [2022] EWHC 1091. There was an application for permission to appeal that judgment. Permission was refused. Full details can be found here 

 THE CASE

Slater and Gordon appealed to the High Court in relation to decisions made in the course of assessment proceedings. The costs judge had made an order for disclosure of documents and did not grant an order for security costs. The High Court judge refused the appeal. There was an application for permission to appeal to the Court of Appeal.  That application for permission was refused.

THE SUMMARY REFUSING PERMISSION TO APPEAL

Lord Justice Warby stated:

“1.Two of the four grounds of appeal challenge orders for disclosure of documents and the provision of further information which Ritchie J (“the Judge”) directed should be complied with by 27 May 2022. On 26May 2022 I refused an urgent application by the applicants (S&G) for a stay of those orders pending appeal. I said, among other things, that compliance with the order for further information would show whether that aspect of the proposed appeal would be academic in the sense that there is nothing to argue about. According to the respondents, S&G have not complied but are presently seeking an extension of time to do so

2. I assume this information is accurate, but am not persuaded by R’s Counsel that I should refuse to entertain S&G’s application for permission to appeal for that reason. It may be that the attempt to secure more time by means of an application to the Costs Judge is an abuse of process as alleged; but I am not in a position to adjudicate on the allegation that this is so. Whilst a court may refuse to hear a contemnor(seeX v Morgan-Grampian [1990] 2 WLR 421 (CA)) this is a discretionary power to be exercised flexibly(see the same case in the HL, [1991] 1 AC 1). In this case, it is not established but only alleged that S&G are in contempt. The non-compliance only relates to two of S&G’s four points. In any event, given the view I have formed of the merits I do not think it appropriate to delay a decision .

Edwards(Grounds 1 – 3)

3. The first issue is whether the Judge was wrong to reject S&G’s contention that the retainers between the claimants (E) and their current solicitors are unlawful insurance policies, so that the claims should be stayed or dismissed. Although this is appeal ground 2, it is logically prior to the others. The point is an important one but the reasoning of the Judge is entirely convincing. In reality this point is concluded against S&G by the decision of MacDuff J in Morris & Sibthorpe v LB Southwark[2010] EWHC B1 (QB)[54]-[46]endorsed by this court’s refusal of permission to appeal[2011] EWCA Civ 25 [59] and [67]. This ground of appeal has no realistic prospect of success.

4. Logically second comes S&G’s contention that the Judge was wrong to refuse their application for security for costs (Ground 3). This ground does not raise an important point of principle or practice nor does it have a realistic prospect of success. It is unarguable that the case falls within CPR 25.14(2)(b).Even if that were arguable, there are no sufficient grounds to interfere with the concurrent conclusions of the lower courts that an order for security would not be just in this case.

5. Finally, there is the challenge to the disclosure order made by the Judge (Ground 1). When I refused the stay application I expressed scepticism about this aspect of the case, saying that “I find it hard to accept that the Solicitors Act does not permit the kind of investigation that both Judges have considered to be appropriate. And even if Part 31 does not apply (which I doubt) it is not easy to see why the court should not make a disclosure order under the general case management powers conferred by CPR 3.1(2)(m)”.Having now looked at the issue again, with the benefit of more time and R’s statement under CPR 52.19,my scepticism is reinforced. My conclusion is that the court plainly has jurisdiction to make an order of this kind in proceedings of this nature: Part 31 does apply in these proceedings; and even if it did not CPR3.1(2)(m) would fill the gap. As a matter of case management the discretionary decision to make the limited order now under challenge is unimpeachable. An appeal would have no realistic prospect of success.

Raubenheimer(Ground 4)Second Appeal

6. The claimant suspects that S&G received secret commissions from the ATE insurers they engaged in this case. There is evidence to support such suspicions. The Judge made an order under CPR Part 18 compelling S&G to disclose whether they did. S&G wish to challenge that order on appeal.

7. I do not consider this appeal raises an important point of principle or practice. It is a case-specific issue of an unusual nature. Nor do I consider the appeal would have a realistic prospect of success, or that ther eis any other compelling reason for the Court of Appeal to hear it. I am not persuaded it is arguable that the decision sought is outside the scope of the assessment proceedings. The Judge’s reasoning at [219] is convincing. The Judge’s order represents a proper exercise of the judicial discretion conferred by Part 18(the matter is “in dispute in the proceedings”) and/or CPR 3.1(2)(m) (power, where the Rules do not provide otherwise, to “make any other order for the purpose of managing the case and furthering the overriding objective”). The Judge gave full and persuasive reasons for taking this course, and this court would not interfere.”