HHJ Charles Harris QC on the 14th March 2016 has dismissed an unusual appeal brought by the First Defendant in respect of a costs order that had been made by the DDJ in the court below on what would traditionally have been formulated as an audi alteram partem appeal. The DDJ had indicated in the morning that he would deal with the main issue in dispute first and after that deal with the cost questions. Unfortunately when he returned to court having retired over an extended lunch time adjournment he dealt first with the substantive issue and then proceeded without hearing submissions from the First Defendant to deal with costs as well. Not unreasonably Council objected at the end of the judgment and sought permission to appeal at which point the DDJ having heard the ground realised his error and offered to hear further submissions notwithstanding his earlier judgment. Counsel declined and persisted in seeking permission to appeal which was refused by the Judge. HHJ Harris QC also refused to interfere. In his view the appeal, which was brought under 52.11(3) only required the appellant to show that the decision was ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. Where the judge had specifically recognised his error and had offered to hear the point again it was not open to the appellant to insist on relying on the error in a higher court rather than make the submissions sought in the court below. The circuit judge took particular account of the nature of modern litigation before the District Judge and the expectation that firm counsel should assert themselves to prevent error rather than seek to rely upon it in overturning the decision.
Whilst there is a lot of common sense to that decision it does raise questions that are hard to answer. Judgments should not be interrupted part way through. Had the judge simply dismissed the application for leave to appeal and not offered the chance to make submissions it would be hard to resist the appeal since the appellant would not have been heard at all. By offering to re-hear the disputed item the judge did the best he could to deal with the situation that had resulted from his error however if the First Defendant still lost the argument it is hard to see how they would have been left with anything other than a lingering sense of doubt that the judge had simply endorsed his judgment as he had already given it. Equally had he changed his mind as a result of the submissions the Claimant would have felt legitimately aggrieved.
David Rivers appeared for the successful respondent instructed by Nicole Bowler of Howe and Co Solicitors.
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