Practice and Procedure


PUBLISHED May 20, 2003

Appeal courts should make clear on the face of their orders for a rehearing whether they were ordering a rehearing at appeal court level or a rehearing of the original application at first instance. A legally aided claimant should not be penalised by costs beyond his means on the basis of his untrustworthy conduct.Applications by the defendant ('S') for permission to appeal from: (i) the decision of Garland J that he had no jurisdiction to hear an appeal by S from an order made by HH Judge Thompson directing S to pay over ?36,000 in costs; and (ii) the order of HH Judge Thompson. The claimant solicitors ('F') claimed against S for unpaid fees and S defended the action, with the benefit of legal aid, on the basis that F had been negligent. The claim was compromised on payment of a lump sum by S together with costs to be assessed. A district judge decided that it was reasonable under s.17 Legal Aid Act 1988 for S to pay the full amount of assessed costs. S appealed from that decision but the court tape recording at the appeal hearing had not been working. HH Judge Brandt therefore granted permission to appeal as the note of the judgment was inadequate and also directed that the appeal be allowed to the extent that S's application was to be reheard by a different circuit judge. Accordingly HH Judge Thompson conducted a rehearing and upheld the original order for S to pay costs. However, the order drawn did not mention that it was an appeal hearing de novo from the order of the district judge. He found that S had a habit of defending himself against solicitors for unpaid fees and though legally aided had been able to make the lump sum payment of £25,000 in settlement of the claim. On S's appeal from that order Garland J concluded that the rehearing by HH Judge Thompson was a hearing at appeal court level as an alternative under CPR.52.11 to a review because of the lack of any reliable record of the district judge's findings and reasons. On the present applications the Master of the Rolls directed that whether or not Garland J was found to have had jurisdiction, the appeal from the order of HH Judge Thompson should be heard by the Court of Appeal. The issue in that appeal was whether the court was right to order S to pay costs when he should have been protected by s.17 of the Act.HELD: (1) If an order did not correctly reflect the judge's intention, then the proper remedy would take the form of an application to the judge to correct his order under the slip rule. (2) The order by HH Judge Brandt could not have been clearer. After granting permission to appeal he treated the hearing as the hearing of the appeal. In so doing he was exercising his powers under CPR 52.10(2)(a) to set aside the order made by the district judge and under CPR 52.10(2)(c) he was ordering a rehearing of S's application before a circuit judge, not a district judge. He unquestionably allowed the appeal. (3) In those circumstances the appeal from HH Judge Thompson's order was a first tier appeal and the order of Garland J must be set aside. (4) HH Judge Thompson had been overly influenced by the adverse view he took of S's conduct and he paid insufficient attention to his duty to make explicit findings as to S's means. There was simply no adequate evidence to justify a finding that S himself possessed sufficient means to pay the full amount of the costs order against him. In those circumstances the sum ordered by the judge was not a reasonable one for S to pay within s.17 of the Act. (5) It was important that appeal courts should make clear on the face of their orders whether they were ordering a rehearing at appeal court level (in which case any subsequent appeal would be a second appeal) or whether they were ordering a rehearing of the original application at first instance.Permission to appeal granted. Appeals allowed.

[2003] EWCA Civ 703