22/07/2014

Pyrrhic victory corner: Costs on appeal from a small claim

Akhtar v Boland [2014] EWCA Civ 943

Just a quick note on this one, after a conversation with a colleague reminded me I hadn’t written it up.

The details of the case need not detain us, it was a PI case which had been allocated to the small claims following admissions by the Defendant. The Claimant appealed on the basis that it should have been allocated to the fast track, and then appealed to the Court of Appeal. The appeal was unsuccessful in the Court of Appeal. The Defendant sought its costs of that appeal.

The Court of Appeal notes the CPR provisions:

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 –

And

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).”

However, the Supreme Court Practice (White Book) at 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; …”

Cutting to the chase, the Court of Appeal held that CPR 27(14) applied to all appeals, not just a first appeal. The note in the White Book “is incorrect”.

So, any appeal of a small claim, no matter how far the appeal goes (Court of Appeal and, I would suppose Supreme Court) will be on a small claims (no) costs basis.

As the White Book note shows, this was not the received wisdom, and worth bearing in mind. Also, an expensive exercise in pyrrhic victory for the Defendant in this case. For Respondents in such appeals, it will be an exercise in judgement as to the value of detailed opposition to any appeal.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. Jason Brierley

    Hello.

    Can you please explain to me so that I am clear, If a claim started off on the small claims track and reaches the CoA are claimants costs available to be charged if the appeal by the defendant was dismissed? Also are costs then claimable if the case proceeds to the Supreme Court ?
    Thanks in advance

    Reply
    • Giles Peaker

      The basic position is that small claims costs rules also apply to any appeal of a small claim. That includes the at the Court of Appeal and, unless the Supreme Court decides differently in the future, probably the Supreme Court too.

      Reply

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