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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MacKay & Ors v Ashwood Enterprises Ltd & Ors  EWCA Civ 959 (31 July 2013)
Cite as:  EWCA Civ 959,  5 Costs LR 816
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE PETER SMITH
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE RYDER
| (1) BRUCE MACKAY
(2) GRAHAM BUSHBY
(in their capacity as court-appointed receivers)
|- and -
|(1) ASHWOOD ENTERPRISES LTD
(2) THOMAS BERNARD MCFEELY
(3) CONAL DEREK MCFEELY
(4) NOEL MCFEELY
(5) CIARAN MCFEELY
(6) STEVE EVANS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Anthony Trace Q.C. and Rosanna Foskett (instructed by Dentons UKMEA LLP)
for the Respondents
Crown Copyright ©
Lord Justice Lloyd:
Introduction and summary
The background to the proceedings
The applications on 28 and 29 June 2012 and the orders made
"The Defendants are jointly and severally liable for and must pay the Claimants' costs of and occasioned by the Application, to be summarily assessed on paper by Peter Smith J"
The subsequent proceedings
"Any person affected by this Order be at liberty to apply on two business days' notice to Mr Justice Peter Smith at 10am for 30 minutes, subject to the availability of Mr Justice Peter Smith"
The application to set aside the costs order
"I accept that the order was a strong order on an ex parte basis, but in my view that was fully justified by the court-appointed receivers' evidence and the long period of harassment in which the only evidence I had showed that the McFeelys were orchestrating it. Mr Page Q.C. submits that the evidence is not relevant evidence to show that the Defendants would disobey an order of a court-appointed receiver. I am not aware of any continued harassment but I do note that the operation of the flats has still not proceeded particularly smoothly, as set out in the receivers' reports which have been provided to me. But I simply do not accept Mr Page Q.C.'s proposition. The whole basis for going for a court-appointed receiver was because that was an application made by the bank who have rights to appoint receivers under its charge, which these Defendants could not contest. The purpose of the court-appointed receiver was plainly set out in the evidence in support because it was the only realistic way in which the out of court receivers could obtain orders which they could enforce and properly exercise control over the properties pending the resolution of the dispute. It seems to me that the need for the court-appointed receivers was strongly made out in the evidence I have referred to, was fully justified and in the event has still not been challenged."
51 Costs in civil division of Court of Appeal, High Court and county courts
(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in
(a) the civil division of the Court of Appeal;
(b) the High Court; and
(c) any county court,
shall be in the discretion of the court.
(3) The court shall have full power to determine by whom and to what extent the costs are to be paid."
"(2) Where the court makes
(a) an order granting permission to appeal;
(b) an order granting permission to apply for judicial review; or
(c) any other order or direction sought by a party on an application without notice,
and its order does not mention costs, it will be deemed to include an order for applicant's costs in the case.
(3) Any party affected by a deemed order for costs under paragraph (2) may apply at any time to vary the order."
"(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application."
Did the liberty to apply extend to the order for costs?
"It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention, that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard."
"CPR 39.3 exists essentially to ensure that a defendant has an opportunity to present her case to a judge."
The liberty to apply: timing
Lord Justice Jackson
Lord Justice Ryder