Case No: A2/2008/0479
Neutral Citation Number: [2009] EWCA Civ 231
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT COURT
(HIS HONOUR JUDGE HODGE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 18th February 2009

Before:

LORD JUSTICE MOORE-BICK

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Between:

	OAKES
	Appellant	
	- and -		
	
CREWE & NANTWICH BOROUGH COUNCIL
	
Respondent	

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Miss Rayne (McKenzie friend) appeared on behalf of the Appellant by special permission of the court..

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Moore-Bick:

1.	This is an application for permission to appeal against a judgment of HHJ Hodge QC dismissing an appeal against an order of District Judge Harrison in the Manchester District Registry.  
2.	Unfortunately this matter goes back a long way.  In September 2003 the Crewe and Nantwich Borough Council served on Mr Oakes (the appellant) a statutory demand for arrears of council tax.  He made an application to have that statutory demand set aside, and the matter first came before the court on 7 April 2004 on the hearing of that application.  The application was dismissed by District Judge Freeman sitting in the Manchester County Court, but he ordered that no bankruptcy petition should be presented before 30 April 2004.  He also ordered that there be a detailed assessment of costs.
3.	In fact, a bankruptcy petition was presented on 30 June 2004 and was listed for hearing on 9 November.  On 8 November 2004 the bulk of the outstanding debt was paid, leaving a balance of only £204.  Accordingly, when the matter came on for hearing the next day before District Judge Harrison, he dismissed the petition because there was not the minimum amount of £750 still outstanding.  However, the judge ordered Mr Oakes to pay the council’s costs, which he assessed summarily at £3,349.71.  
4.	Mr Oakes appealed against that decision on 22 November, and on 31 October 2007 (why there was such a long delay I know not) the appeal finally came on before HHJ Pelling QC.  Having looked at the papers and at the papers in other matters related in various ways, he directed that there should be a hearing before HHJ Hodge QC on the appeal from the order of District Judge Harrison.  He directed that the judge should consider, among other things, whether the District Judge had jurisdiction to order a summary assessment notwithstanding that at the earlier hearing before him District Judge Freeman had ordered a detailed assessment of costs and that the three months allowed under CPR 47.7 had already expired. Judge Pelling also directed that the judge should consider whether, if Judge Harrison did have jurisdiction to order a summary assessment, he was wrong to exercise it at all and whether he exercised it unfairly.
5.	The appeal against Judge Harrison’s order came on before Judge Hodge QC on 4 January 2008.  He dismissed the appeal on the grounds that the court has jurisdiction to vary a previous order if there has been a material change of circumstances; that Rule 47.7 does not impose an absolute deadline for commencing a detailed assessment; that District Judge Harrison did not err in exercising his discretion to order a summary assessment, having regard to the overriding objective, and in doing so did not act unfairly.  Judge Hodge expressed the view that the appeal was totally without merit.
6.	The grounds of appeal to this court are lengthy and in some respects not as helpfully formulated as they might have been, but I think it is fair to say that they can be summarised in the following manner.  It is said that Judge Hodge had seen papers relating to previous applications before the court that he should not have seen, but, more importantly, that he had already reached a conclusion before the hearing began, as evidenced by the fact that he delivered a judgment of such length that it must have been written in advance.  The second ground is that the judge’s order was in any event an unreasonable order to make.  The third is that the judge was wrong to hold that District Judge Harrison had jurisdiction to vary the order of District Judge Freeman that there be a detailed assessment; and the fourth, that Mr Oakes did not have a proper opportunity to deal with that application or to address the judge on the assessment of costs.  Finally, Mr Oakes seeks to raise various complaints of misconduct on the part of the council in relation to the proceedings before the court on previous occasions.
7.	This last point can, I think, be disposed of straight away.  What I am concerned with is an application for permission to appeal against the order made by Judge Hodge on 8 January.  It is not open to the appellant to raise matters relating to the proceedings before District Judge Freeman or indeed any of the other judges who have dealt with this matter.  
8.	As to the other grounds of appeal, I come first to the ground complaining that Judge Hodge had effectively reached a conclusion before the matter came on for appeal.  What is said is that the parties addressed the court for something of the order of twenty minutes or thereabouts, and the judge then delivered a judgment which lasted for well over an hour.  I have, of course, read Judge Hodge’s judgment, and it strikes me that despite, or perhaps because of, its length, it bears all the hallmarks of having been delivered extempore rather than having been written in advance.  It is often the case that judges who are delivering their reasons extempore refer to and quote from the documents before them, and do not always express themselves as succinctly as they are inclined to do in writing.  
9.	It is right to say that, as I explained to Miss Rayne, whom I heard on behalf of Mr Oakes, that nowadays judges are expected to read the papers in advance of the hearing, and the efficient conduct of the court business makes it desirable, if not essential, to make some notes about the background to the application before one comes into court.  The alternative is to find oneself scrabbling around amongst the papers trying to identify some fact or date which is not in the slightest bit controversial but which must be mentioned in order for the judgement to be understandable.  A great deal of the background to most cases is not controversial, and making a note of such matters in advance does not in any sense mean that the judge has made up his mind.  I cannot see any grounds in this case for saying that just because the judge gave judgment at some length, referring to various parts of materials before him, he had in any sense made up his mind.
10.	As to the court’s jurisdiction to vary an order, it is quite right of course that a court cannot vary an order just because it has changed its mind, but it has always been recognised that there are many orders which the court can vary if there has been a material change in circumstances since the original order was made.  The court can take that course, either on the application of the parties before it or, if it thinks appropriate, of its own motion.  That is what, it seems to me, occurred in this case.  
11.	By the time the matter came before District Judge Harrison it had assumed a very different shape from that which it had before District Judge Freeman.  Miss Rayne points out, quite rightly, that Rule 47.7 prescribes a time within which detailed assessment proceedings must be started, but the rules also recognise that sometimes that provision will not be complied with, and set out in terms in Rule 47.8 what shall happen if it is not.  So it would be wrong to approach the matter on the basis that, simply because the council had not taken steps to begin detailed assessment proceedings, it was precluded from taking any other course of action.  In my view, by the time the case came before District Judge Harrison the circumstances had changed significantly and he had jurisdiction to vary the original order if he thought fit.  There is no suggestion that either of the parties objected at the time to the course that he proposed to take.
12.	I understand the submission that this change of circumstances was not one which Mr Oakes had envisaged, and that he did not have much time to consider the council’s claim for costs, but it must be remembered that detailed assessment proceedings are an expensive procedure and, since Mr Oakes was the paying party, the likelihood is that he would have to bear the costs of a detailed assessment, if one were to take place.  It was in his interests, one would think, for a summary assessment to take place, which would avoid racking up costs even further.  District judges are well alive to the need to be cautious before accepting the receiving party’s bill at face value.  In this case, District Judge Harrison reduced the council’s bill of costs quite significantly.  Whether or not any complaint was made before Judge Hodge about the actual assessment, as opposed to the procedure by which it was reached, certainly there is no ground of appeal based on the assessment itself.
13.	In my view this is not a case in which it can be said there was any significant procedural unfairness.  Matters of this kind coming before the district judges have to be approached with a good deal of common sense, and most judges are well aware of the importance of ensuring that a litigant in person is not prejudiced by the course which they take.  In my judgment there are no arguable grounds for saying that there was significant procedural unfairness in this case, but, if there was, there is nothing to show that it was prejudicial to the appellant.
14.	In my view, therefore, none of the grounds relied on by the appellant have any real prospect of success on appeal, but, quite apart from that, as I have pointed out to Miss Rayne, this is an application for permission to make a second appeal.  The appellant must therefore demonstrate that it raises an important point of principle or practice or that there is some other compelling reason why this court should hear the case.  The submission is made that the important point that arises in this case is to do with the courts’ treating all litigants before them on an equal footing.  That of course is an extremely important principle and one which no court would wish to undermine; but I am not satisfied, for the reasons I have given, that Mr Oakes was treated unfairly.  
15.	A second appeal will normally only be allowed where it raises a point of general importance, either as a matter of the legal principles involved or as a matter of the court’s practice.  In my view, neither of these requirements is satisfied in this case; nor is there any other compelling reason why this court should hear the matter. For that reason alone, therefore, permission must be refused.
16.	For all these reasons this application for permission to appeal is refused.
Order:  Application refused