[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dinglis & Ors (t/a Dinglis Property Services) v Fatollahy [2001] EWCA Civ 541 (5 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/541.html Cite as: [2001] EWCA Civ 541

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CLERKENWELL COUNTY COURT
(His Honour Judge Reid)

		Royal Courts of Justice Strand London WC2
		Thursday, 5th April 2001

1. LORD JUSTICE HENRY: This is the claimants' application for permission to appeal against the judgment of His Honour Judge Reid, given on 12th May 2000 in the Clerkenwell County Court. That judgment was itself an appeal from the costs order made by Deputy District Judge Whitaker on 20th March 2000 in the same court. This is therefore a second appeal, to which section 55 of the Access to Justice Act and CPR Part 52.13 applies. This court will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it.
2. The matter arises in this way. In 1988 the claimants let a flat to the defendant under an assured shorthold tenancy. Two months later they sought possession due to rent arrears. They obtained a suspended possession order when the defendant did not attend a hearing. However, in early 1999 the defendant succeeded in setting aside the suspended possession order and entered a defence to the claim. The claimants then decided, on economic grounds, to allow their claim against the defendant to be struck out by ignoring an "unless" order which required the filing of an allocation questionnaire. They started fresh proceedings under the accelerated procedure which was now available to them because the term of the assured shorthold tenancy had expired, to which no defence was available. As a result of that stratagem, they duly obtained possession.
3. The defendant then applied for his costs of the original possession order. The deputy district judge awarded costs in his favour. The circuit judge upheld that decision on appeal. The deputy district judge had noted that the original possession claim had included a claim for arrears of rent. A claim for arrears is not available under the accelerated procedure. The claimants had therefore in effect abandoned their claim for arrears and had just pursued possession by another method. Where a claim has been abandoned, costs will normally be awarded against the party who abandons the claim. The claimants orally applied to have the original claim reinstated. The deputy district judge noted that the decision to ignore the "unless" order had been quite deliberate and that seven months had passed since then. He rejected the application, saying: "People who make deliberate decisions to disobey a court order, as far as I am concerned, do not get their applications reinstated. It would be totally wrong. You made a decision ... It was the wrong one, I think, but there it is."
4. On appeal, the circuit judge noted that there were a number of things which the claimants could have done. They could have issued a claim under the accelerated procedure and applied to have the matters heard together, obtaining possession under one set of proceedings and a money judgment under the other. Alternatively, they could have applied to enter judgment under the original proceedings on the basis that the terms under which the original judgment had been set aside were not being complied with. The judge said that this was a common situation "where the claimant, for one reason or another, determines not to go on with the litigation that he has started". He said:

"In those circumstances, if he gives up without having struck some deal, for example that each side bears its own costs, he will find himself having, in the absence of very special circumstances, to pay the defendant's costs."

5. The judge concluded that the deputy district judge had exercised discretion in a proper manner. Furthermore, in his opinion it was the correct decision.
6. Costs are within the discretion of the judge. The court will only intervene if it can be shown that the judge below was plainly wrong. Here the deputy district judge made a standard order. Where claims are abandoned, costs to the defendant to those claims will normally follow.
7. Applying, as I must, the higher test for second appeals to this court, it seems to me that this is not a case that gives rise to an important point of principle and there is no other compelling reason for this court to hear it. Therefore, for those reasons, I refuse permission to appeal.
Order:application for permission to appeal dismissed.