Akhtar v Boland

This is my judgment on the issue as to the costs of the appellant’s unsuccessful appeal to this Court against the order of His Honour Judge Platts dismissing his appeal against the order of District Judge Fox refusing to reallocate the claim to the fast track, with the result that it remained in the small claims track. This Court ordered that the issue as to the appellant’s liability for the costs of the successful respondent would be decided on the parties’ written submissions.

The relevant rules of the CPR are CPR 27.14 and 52.9A. CPR 27(14 provides, so far as relevant:

“(1)

This rule applies to any case which has been allocated to the small claims track.

…

(2)

The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses including those relating to an appeal, except –

It is not suggested that any of the exceptions set out under CPR 27.14(2) in subparagraphs is applicable to this case.

CPR 52.9A provides:

“(1)

In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2)

In making such an order the court will have regard to-

(a)

the means of both parties;

(b)

all the circumstances of the case; and

(c)

the need to facilitate access to justice.

(3)

if the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).”

The current note in the Supreme Court Practice at paragraph 27.14.1.1 states:

“Rule 27.14 (2) applies the “no costs” rule to first appeals to the circuit judge. However, in his review on civil litigation costs Jackson L.J. pointed out that second appeals against small claims decisions in the Court of Appeal are “subject to full costs shifting” (Ch.34 para 3.3). Rule 52.9A was introduced to mitigate that; …”

For the defendant respondent, Mr Andrew Prynne QC points out that permission to appeal was given in this case because it raised an issue of general practical importance, and that although nominally the parties were individuals, in fact they were supported by commercial concerns, a credit hire company on the side of the appellant and an insurance company on the side of the respondent. Moreover, it would be manifestly unfair for the Court to hold that if the appeal had been successful, and the claim consequently allocated to the fast track, the appellant would have been awarded his costs of the appeal, but if, as happened, his appeal was unsuccessful, no order for costs was made. The appellant’s risk would be one way, only in respect of his own costs.

For the appellant, Mr Weir QC relied on the provisions of the CPR to which I have referred.

If I could, I would order the appellant to pay the respondent’s costs of his appeal to this Court. However, the power of this Court to make a costs order is constrained by the CPR. The wording of CPR 27.14 is clear, and extends to the costs of an appeal, and I see no basis for construing that as inapplicable to an appeal to this Court. Indeed, if it did not extend to appeals to this Court, it would follow that there would be power to make a costs order even on appeals in cases the allocation of which to the small claims track was undisputed and indisputable. CPR 52.9A confers power on the Court to limit costs of an appeal, but it does not confer power to award costs where there is a provision of the CPR precluding a costs order. In my judgment, the note in the White Book is incorrect. Regrettably, therefore, I would make no order for the costs of the appeal to this Court, on the ground that any such order is precluded by CPR 27.14.

I agree.

I also agree.