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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Handf Acceptances Ltd [2002] EWCA Civ 1417 (13 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1417.html Cite as: [2002] EWCA Civ 1417

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHADWICK LJ

		Royal Courts of Justice Strand London WC2 Friday 13th September 2002

1. LORD JUSTICE CARNWARTH: This case is an application for permission to appeal against an order of Hart J, whereby he affirmed an order of His Honour Judge Cox, striking out Mr Barnes' amended particulars. He awarded the defendant the costs of the appeal and the hearing before His Honour Judge Cox, to be the defendant's costs in the case, which means that they would be included in the costs if the defendant succeeded in the trial but not otherwise.
2. The application for permission to appeal came before Chadwick LJ on the papers, Mr Barnes having requested that it be dealt with on the papers. He indicated that permission to appeal should be refused. He drew attention to the fact that this is a second appeal and that permission would only be granted if it raised some important point of principle or practice, or some other compelling reason why the Court of Appeal should hear it. He said that there was not.
3. Then on 25th July, the matter came before Chadwick LJ again as a renewed application. Unfortunately, Mr Barnes was unable to attend due to illness. Although the Court was informed somewhat late, I am satisfied, on the documents I have seen, that there was a valid reason for non-attendance and therefore that, under Order 39 (3), I am entitled to hear the reinstated application.
4. Chadwick LJ gave a judgment in which he summarised the factual background, in terms which it is unnecessary for me to repeat. He again made clear his view, that there was not any matter of general importance justifying permission to appeal on what was a second appeal.
5. He ended by emphasising that Mr Barnes still has a claim on foot which he can pursue. He suggested that there was no prospect of this Court interfering with the judge's view that, as a case management function, it was essential that the claim was pleaded in a way which could proceed to trial consistently with the objective of the rules.
6. He said it was open to Mr Barnes to apply to reinstate the application but he added, in the light of the indications given, that it would be a more profitable use of his time and energies for him to put his case into a form which would have some prospect being allowed as an amendment in the County Court. He directed that a transcript be prepared at public expense and given to Mr Barnes.
7. On that point, dealt with by Chadwick LJ, I have nothing to add to what he said, except to repeat that it is essential that Mr Barnes realises that he has got to get his case in order into proper form. There is certainly no issue for on appeal to this Court.
8. The other point, however, relates to Hart J's order on costs. It is one which Chadwick LJ did not address and it is possible that it was not at the forefront of the documents which he had before him. However, it does seem to me that here there is a point on which Mr Barnes should be entitled to permission to appeal. This is not a second appeal, in the sense that Hart J's order was one made in his proceedings and therefore has not been subject to any review. The Court will normally be very slow to interfere with the judge's exercise of discretion as to costs. However, as Mr Barnes points out, the position here was that before Judge Cox the effect of what happened was that his case was effectively struck out altogether. Again, this was explained by Chadwick LJ. For whatever reason the County Court judge understood, that the new pleading was intended as a substitute for the old, and that if the new was struck out, the old would go with it.
9. Before Hart J it became clear that that was not the true position and that the original claim remained as a claim although requiring updating and no doubt further particularisation. So to that extent Mr Barnes' appeal was successful. It is noteworthy that Mr Miller, counsel for the defendants, clearly understood that he could not claim all his costs below and on the appeal. According to the note I have he suggested that he should have half his costs below, whereas the right order for the costs of the appeal was that they should be defendant's costs in the case. The judge apparently, Hart J, said this:

"I am not sure that the distinction between costs below and the costs of the appeal is a logical one. It seems to me while it is right that this whole litigation has revolved over the last year around the question of the amended particulars, if it is right that the costs of this appeal should be the defendant's costs in the case, then it would also be right that the costs before Judge Cox should be the defendant's costs in the case. Alternatively he has part of the costs of that hearing and part of the costs before me."

10. What he actually decided then was that the whole of the costs should be the defendant's costs in the case. He referred to the change in practice reflected in the new CPR, and he said:

"I am satisfied that a substantial part of the costs here and below have been caused by the introduction of the amendments. The fact that the defendant obtained a summary judgment which it was not able to sustain on the appeal was somewhat incidental to that question."

11. With great respect to the judge, I think that was arguably wrong in principle. Even though the introduction of the amendment may have been a substantial cause of the costs, the fact that as a result of the proceeding in the High Court there was reinstatement of the proceedings which had been wholly struck out below was a matter of considerable significance and one which one would have expected to be reflected in some way in the order for cost. To that extent, on the costs order alone, I give permission to appeal.
12. The directions on that are two Lord Justices and not more than 2 hours.