COST BITES 2: A (PROSPECTIVE) RESPONDENT DOES NOT GET THE COSTS OF ATTENDING PERMISSION TO APPEAL HEARING

July 5, 2022 · by · in Appeals, Costs

In Novartis AG & Anor v Teva UK Ltd & Ors [2022] EWCA Civ 775 Lord Justice Birss refused to order costs when a respondent to an appeal attended at a permission to appeal hearing.

THE CASE

The judge heard an application for permission to appeal. Permission was refused. The respondents to the appeal attended the permission hearing.  The judge considered the issue of whether the respondents should recover their costs of attending the application. He held that they should not.

THE JUDGMENT ON COSTS

 

    1. I now need to resolve what to do about the costs of this appeal. Mr. Hinchliffe for Teva submits — and I imagine Mr. Mitcheson would probably support it, so I did not give him a chance to say anything — that I should apply Practice Direction 52C, rule 20(2) which says, “If the court directs the respondent to file submissions or attend a hearing, it will normally award costs to the respondent if permission is refused.” He submits that is what has happened and therefore I should award the respondents their costs. He also submits that even if that is not the rule, I should award the respondents their costs anyway on general principles. Miss May submits the rule does not apply because I did not direct that the respondents should attend.
    1. In my judgment, this rule does not apply, because the order that I made last week gave the respondents the ability to come if they wished, but it did not require them do so, and, accordingly, that rule does not apply.
  1. Looking at the matter overall, in my judgment, there is no reason why the costs of this application for permission to appeal should be treated any differently from what is normally done, and what is normally done (see rule 20(1)) is the court will not normally make a costs order in favour of a respondent who attends a hearing voluntarily, even if permission to appeal is refused, so I will make no order as to costs.