This an application for permission to appeal the decision on costs made by Nicholas Warren QC, sitting as a Deputy Judge of the Chancery Division, on 8 June 2004.

The matter should have come before me on 9 November 2004 when I dealt with the number of other applications for permission to appeal made by each side in the main action. Mr Sherman, who has been permitted to represent the defendant in these proceedings, realistically accepted before me that I could and should deal with the question on the papers, not least because the sum involved is rather small, being of the order of £400.00.

The Deputy Judge was dealing with a procedural application by the claimant company for permission to serve its witness statements out of time. Under the original order the date for the exchange of witness statements was 16 January 2004. The claimant wanted disclosure and, for that reason, did not serve the statements in time. Disclosure was in due course given (I need not go into detail) and the witness statements were served on 20 May, which was some five weeks before the trial was due to proceed on 28 June.

Although complaint was made of the lateness, Mr Warren held that there was no prejudice to the defendants by reason of the late service of the witness statements. He permitted late service. He concluded:

No complaint is now made about the admission of the evidence. The complaint is simply that Mr Warren ordered the defendant to pay the claimant’s costs. The grounds for appeal, although set out in six somewhat detailed paragraphs, boil down to this:

That it was the claimants who were late with the evidence;

it was they who needed permission to get it in late;

and it should be they who pay the costs of getting it in.

I have no doubt that this argument is fallacious. It relies upon a formalistic approach to the rules of court, an approach which, whatever the position in the past, is now to be deprecated. It was the defendant who specifically required formal application to court for the evidence to be admitted. He indeed went further and opposed its admission. If the defendant had instead consented the matter could have been dealt with at no or trivial cost. It was the defendant who caused the costs of the application.

In the circumstances I think that the Judge’s order was entirely right. And it was certainly within the wide discretion given to a Judge when he comes to the question of costs. No error of principle is shown and there is no reasonable prospect of success on appeal.

I would add that I have dealt with this matter without the views of the Judge on the question of whether or not permission to appeal should be granted, for permission was never sought from him as it should have been. In the end this made no difference to my decision however. I have no doubt that the Judge, if he had been asked, would have refused to grant permission.