A2/2002/0729
Neutral Citation Number: [2002] EWCA Civ 685
IN THE SUPREME COURT OF JUDICATURE      
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Cresswell)
								Royal Courts of Justice
								Strand
								London WC2

								Thursday, 2nd May 2002
B e f o r e:

LORD JUSTICE JUDGE

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ANDREW PARKER
Claimant/Respondent

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GRAHAM HUTCHINGS
Defendant/Applicant
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person.

The Respondent did not appear and was unrepresented.

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J U D G M E N T
Thursday, 2nd May 2002 
1.	LORD JUSTICE JUDGE: This is an application by Mr Graham Hutchings for permission to appeal part of an order made by Cresswell J on the 29th January 2001 in relation to the costs of a hearing which took place before him on that day. Mr Hutchings has appeared in person. Mr Hutchings and I have come across each other before - he in person, me sitting as a single Lord Justice of appeal - in connection with the litigation which gives rise to all this trouble. Once again, he has conducted his application with great courtesy. I think I should add that, although I acknowledge the courtesy with which he has treated me, I am not blind to the fact that he feels a very deep sense of grievance about all these proceedings and I understand his sense of grievance. 
2.	There is a fairly lengthy history. I do not propose to go into the history of the litigation as such, but the first significant hearing in the present context is a hearing on 7th March 2000 before a costs officer, a Mr Lambert, in the Supreme Court Costs Office. Mr Hutchings was incensed that Mr Parker, who was the other party to the original proceedings, had issued a bill of costs of effectively £6,000. That, he felt, was wildly in excess of whatever could be reasonable. The result was that through his solicitors he wrote an open offer to settle Mr Parker's costs at £4,000, to include VAT and disbursements. On assessment, Mr Lambert assessed the costs of Mr Parker, not at the nearly £6,000 which he had sought, but to a fraction over the £4,000 which Mr Hutchings had offered. The actual figure was £4,005.76. Having looked at the offer and set it against his own assessment of the costs, Mr Lambert then ordered that Mr Hutchings should pay the costs of the assessment, which amounted to £630. 
3.	Mr Hutchings' complaint about Mr Lambert's conduct of the hearing before him was that he had refused to deal with allegations made by Mr Hutchings of misconduct in the proceedings and that, if he had dealt with those claims, the figure would have been reduced, not to £4,005.76, but by an additional £1,120. If that had been done, Mr Hutchings contends, that would have taken the figure allowed to Mr Parker to well below the £4,000 offer made in the letter by his solicitors; and, if that had happened, he would not have been liable to pay the costs of the hearing before Mr Lambert. Rather, the order would have been made the other way round: he would have recovered his own costs. The effect of that was, according to Mr Hutchings' case, that he had lost the £630 he was ordered to pay to Mr Parker and also the £331 which Mr Parker would have been ordered to pay to him; so, approaching very nearly £1,000.
4.	Mr Hutchings appealed Mr Lambert's order. The issue came before Master Pollard in April 2000, and eventually the appeal in relation to misconduct issues came before Costs Judge Seager Berry on 14th August. At that hearing Mr Hutchings was in person and solicitors represented Mr Parker. The appeal was allowed in part. It was ordered that Mr Hutchings should send a break-down of the costs relating to setting aside the default certificate and the application arising out of the failure by Mr Parker or his solicitors to apply for an appointment for detailed assessment on or before 8th December 1999. The costs judge added as part of his order that the parties should use their best endeavours within 21 days of receipt of that break-down to reach an agreement and that the appeal against the order of Mr Lambert that the defendant pay the costs of the detailed assessment should be dismissed. 
5.	The order, as drawn up, then returns to the “endeavour” that the judge had asked that the parties should use to reach agreement. In default of that he gave permission to apply for a telephone conference hearing, or a hearing by a district judge in the Cardiff District Registry. As to the costs of that hearing, he said that the costs thrown away by the application should be awarded to the defendant. They were summarily assessed at £450. So the order, as drawn, was that the order made by Mr Lambert that the defendant should pay the costs of Mr Parker's detailed assessment should be dismissed. 
6.	As I understand it, there was then some correspondence. The costs judge refused to amend his order, but extended Mr Hutchings' time to appeal, and eventually the application for permission to appeal to the High Court against Costs Judge Seager Berry's order dismissing Mr Hutchings' appeal against Mr Lambert's order in relation to the costs of the hearing before him came on before Cresswell J on 29th January. This is now the order which I have to consider. 
7.	The hearing seems to have been a very short one, and the judge focused on the point in issue. He quoted from Costs Judge Seager Berry: 
“The appeal against the order against the order of Mr. Lambert that the claimant pay the costs of the defendants of the detailed assessment be dismissed.”
8.	He then gave judgment in which he noted this paragraph, referred to the other paragraphs in the original order, and said that the matter had not yet been finally resolved. He considered paragraph 5 provided for the telephone conference hearing. Accordingly, he directed that the matter should return to Costs Judge Seager Berry so that it should be finalised: 
“I do not consider it appropriate to grant permission to appeal today.” 
9.	He then repeated that the matter would go back to Costs Judge Seager Berry, saying (presumably to both parties but certainly in the presence of Mr Hutchings): 
“... you will be able to follow through the balance of his order and make any further submissions you think appropriate. But I am not prepared to grant permission today, and the sooner this is sorted out the better.” 
10.	There has been some discussion about the precise effect of the order, but clearly what the judge was not prepared to do was to grant permission to appeal to him on the day and, reading the judgment as best I can, it seems clear that what he was saying was that the application for permission to appeal had been made before the issues had finally been resolved and was therefore in that sense premature. The matter, using the judge's words, “is not yet finally resolved”, and using his words again, he directed that “the matter ... can be finalised”. 
11.	There was then an unfortunate error in that the actual order as drawn up did not reflect the judge's judgment or the order he had made. It recorded that permission to appeal had been granted, whereas in fact, as the passages I have read from the judgment demonstrate, permission had been refused. Eventually, and very much later, in February of this year (so over a year later) the order was amended so that it read “permission to appeal refused”, which coincided with what the judge had said. 
12.	Following the history through after that, it looks as though the case returned to Costs Judge Seager Berry in March of this year so that the order which he had originally made in August 2000 should be followed through to whatever logical conclusion it came. What I am not clear about ‑ it does not matter for the purposes of the decision I have to make today ‑ is quite where all that ended. 
13.	What I have to consider, as I said at the outset, is whether there are grounds to justify permission to Mr Hutchings to appeal the costs order made by Cresswell J on the application which he heard and decided on 29th January. Mr Hutchings complains that he had not been informed by Mr Parker in advance of that hearing of his likely level of costs, and indeed (and I am summarising it) that Mr Parker had failed to proceed in accordance with the relevant rules relating to costs. The problem which he faces (and I understand why he is concerned at the way in which these proceedings have gone) is that in the end Cresswell J did not make the order that he, Mr Hutchings, was seeking from him. 
14.	The normal practice is that the costs of an unsuccessful application to the court are borne by the unsuccessful party. On that basis, Mr Parker was entitled to apply for his costs of that hearing. His failure to comply with various of the requirements of the rules was not a ground for disentitling him to the costs that he had incurred in meeting Mr Hutchings' unsuccessful application. 
15.	I understand Mr Hutchings' position, but nothing has been shown to me which gives me any ground for thinking that, if this application were turned into an appeal before the full court, he would have the slightest prospect of success. In those circumstances, I do not think I have jurisdiction and it would not be right for me to grant him permission to appeal.
16.	Accordingly, the application will be refused. 
Order: Application refused.