2001/1812

Neutral Citation Number: [2001] EWCA Civ 1581
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
(HIS HONOUR JUDGE CATLIN)

								Royal Courts of Justice
								Strand
								London WC2A 2LL

								Friday 12 October 2001

B e f o r e:

LORD JUSTICE THORPE

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TANYA BRIGHT
Claimant/Applicant

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MARCUS WILLIAM BRIGHT
Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR ADRIAN LANGDALE (Instructed by Messrs Hetherington & Co, Slough, ST1 1TX) appeared on behalf of the Applicant.

The Respondent did not attend and was not represented.
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J U D G M E N T
1.	LORD JUSTICE THORPE: This is a renewed application from His Honour Judge Catlin in the Reading County Court on 26 July 2001. 
2.	I provisionally refused the application on paper on 12 September when I said that the application was caught by section 55 of the Access to Justice Act 1999 and that this court seldom entertains applications to appeal orders as to costs only, particularly because the province of the judicial discretion is broad in the field of costs and also on the ground of proportionality. 
3.	This court is essentially a court of law. Its function is to correct error in the course of trial, but the error has to be sufficiently substantial to justify the expenses and procedure of a full scale appeal involving, almost always, counsel on both sides, as well as often three, certainly two, judges of the court who have to prepare the case and also to sit in court to hear it argued. In my opinion this application manifestly fails to get anywhere near the level of proportionate significance to justify a grant of permission. 
4.	Judge Catlin was sitting on appeal from an order made by a district judge. Litigants must understand that if they exercise a right of appeal in the court of trial, their window of opportunity for a second appeal is extremely limited. Judge Catlin condemned the wife in the costs of the day's hearing before him, despite the fact that he allowed the appeal, partly because she had succeeded on only one of several grounds asserted, and partly because he held that her unreasonable failure to file evidence in advance had obliged him to remit for a full day's hearing before another district judge rather than to determine the issue himself. 
5.	Mr Langdale has done his level best with a difficult application. He asserts that the judge's reasoning was flawed since it was late in the afternoon and the absence of evidence for which he criticised the wife was not essential. I do not have nearly enough information about the issues in the short bundle before me to criticise Judge Catlin's exercise of discretion on that point. 
6.	Mr Langdale's better argument, is that, according to the note which has been prepared for the purposes of this appeal, the judge dismissed a preliminary submission made by the husband's counsel at the end of the first hour of the hearing saying that he would defer the costs of that application, that an hour had been spent and that the costs should be paid by the loser. Certainly, at the end of the day (4.30 pm or thereabouts) everybody seems to have lost sight of that point, which is not reflected in the judge's order. 
7.	The wife was represented by Mr Robinson of counsel on that day. It was his obligation to ask the judge about the costs of the strike-out which the judge had indicated should be his client's. That point was not taken, and it seems to me disproportionate to set up an appeal to correct an error that could have been corrected by the wife's counsel on the very day of trial.
8.	For all those reasons I am satisfied that this application must be refused. In passing I only add that I have been handicapped in assessing the application by the absence of a transcript. Mr Langdale has informed me that his instructing solicitors have been unable to obtain a transcript, or the judge's approval of their note of judgment or counsel's note of judgment, despite many letters of request to the Reading County Court. I do not understand what has been going on because I have not seen the letters. In the ordinary course the transcript should be obtained from the transcribing firm, the obligation of the court only being to make the tape available. If those acting for Mrs Bright wish to pursue the matter, they can submit the correspondence to my clerk and I will consider what further steps, if any, should then be taken. 
Order: Application refused.