Following an emphatic victory for our Claimant client in the Technology and Construction Division of Central London County Court, the Defendant tried to appeal, challenging almost every finding of fact.
In the High Court Kerr J dismissed the application for permission to appeal, referring by analogy to the Court of Appeal’s unwillingness to investigate findings of fact made by the Technology and Construction Court.
This is a welcome recognition of the specialist role of this County Court and will be welcomed by its users as a discouragement to appeals.
Two other aspects of the way the Court dealt with the appeal will help to limit the cost of hopeless appeals:
1. The High Court had listed the Appeal to immediately follow the permission applications. Jay J was persuaded by us (on paper) to have the permission application and the Appeal heard on separate days, thereby avoiding substantial costs in the (likely) event that permission was not granted. As the application for permission to appeal completely failed our client was saved the considerable cost of preparing for what could have been a complicated Appeal based on challenges on many detailed factual points.
2. PD52C paragraph 20 (1) warns that an order for costs will not normally be made in favour of a respondent who voluntarily attends a permission hearing. However, our client was awarded 60% of his legal fees for preparing and attending the hearing because the Judge found the attendance of the claimant’s legal team helpful.
These decisions should embolden successful parties to intervene at the permission stage when a misconceived appeal is brought.
However, the unfortunate procedural history of the Appeal has revealed an error in the White Book. The Defendant had purported to file its permission to appeal application at the Central London Civil Justice Centre on the last day of the time period in which the appeal had to be filed on the basis that, in the case of the Central London County Court, which is part of the Central London Civil Justice Centre, the Appeal Centre is described in Table A in Practice Direction 52B of the White Book as the ‘Central London CJC’. The appeal papers were returned by Court staff on the basis that they had been filed in the wrong court. Kerr J held that this was wrong: an Appeal cannot be heard at the same level of Court where the decision being appealed was made. The Appeal should have been filed in the Appeals Office of the Royal Court of Justice, the Strand i.e. to the High Court. Although he ordered an extension of time, practitioners will need to be aware of this error in the White Book so they avoid the added cost of an unnecessary application for permission to apply out of time.
