Richard Parker 9th Earl of Maccelsfield -v- Beachwood Estate Company

[2004] EWCA Civ 1476

The defendant (B) appealed against the decision of a judge to make no order as to costs in previous litigation between the parties.  In a judgment in previous litigation the judge has criticised B's manner of disclosing certain documents.  In deciding costs the judge decided that although B had been the slightly more successful party its failure to disclose the documents along with certain other matters meant that there should be no order as to costs.  As a consequence of the judge's criticism the claimant (M) had applied for a wasted costs order against B.  Seven months after the original judgment the judge had dismissed M's application.  B had then sought to appeal the original costs order on the basis that the judge has expressed a different view on the disclosure of the documents in the wasted costs application, to that expressed by him in the original costs decision.  B had subsequently been granted an extension of time to appeal.  M submitted, as a preliminary point, that there was no justification in examining the exercise of the judge's discretion as a whole in making no order as to costs as the only basis for the grant of extension of time to appeal and permission to appeal had related to the judge's view on B's disclosure of the documents.