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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 >> Patten (t/a Anthony Patten & Co) v Lord Chancellor [2002] EWCA Civ 1545 (14 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1545.html Cite as: [2002] EWCA Civ 1545

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LEVESON)

		Royal Courts of Justice Strand London, WC2 Monday, 14th October 2002

1. LORD JUSTICE RIX: This is an application for permission to appeal by Mr Anthony Patten, a solicitor, in costs proceedings in which he has been the claimant against the Lord Chancellor.
2. It all arises out of his retainer on behalf of a defendant in lengthy and complex criminal proceedings. Following the end of those proceedings Mr Patten sought to tax the costs which he was claiming under the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 ("the regulations"). He therefore brought a claim under those regulations which was considered by a determining officer. He then asked the determining officer to reconsider those costs, which he did. He was dissatisfied with the redetermination of those costs and took an appeal to a costs judge, Master Rogers, and being still dissatisfied with the determination of that appeal, he asked Master Rogers to certify certain points of principle of general importance, which was a necessary condition under regulation 16 for him to obtain a further appeal to the Queen's Bench Division. Master Rogers did certify three such points and the matter therefore went to the Queen's Bench Division.
3. There was at that stage a dispute between Mr Patten and the Lord Chancellor as to the scope of that appeal. The Lord Chancellor contended that that appeal was confined to the three certified points, but Mr Patten wished to be able to extend the scope of his appeal to numerous other points. It was also at about this stage that to assist him in the prosecution of those further points Mr Patten applied for the disclosure and rectification of the court log. His complaint was that by reference to other documents in the criminal proceedings, such as transcripts and so forth, he was able to show, he submitted, that in certain respects the court log was inaccurate either by way of omission or commission. I think mainly, he submitted, by way of omission.
4. As a result of that dispute relating to the scope of the appeal which he was entitled to pursue in the Queen's Bench Division, the issues as to scope and as to the jurisdiction of the court on that second appeal were argued initially as preliminary points before Leveson J. He gave judgment on those preliminary issues on 22nd May 2001. His judgment is reported at [2001] 3 All ER 886.
5. In essence Leveson J found that Mr Patten's appeal was limited to the three certified points, save only for one other point which it turned out had not been finally resolved in the proceedings below and which he thought could easily be resolved between the parties.
6. In those circumstances, the matter went before Henriques J sitting with two costs assessors for the determination of the substance of Mr Patten's appeal.
7. In the meantime, the Lord Chancellor had, by the Treasury Solicitor's letter of 22nd February 2002, in effect put his hands up on the three certified points and had undertaken to make certain extra payments to Mr Patten in reflection of the latter's claims by reference to those three points. Henriques J therefore held that that capitulation put an end to the substantive appeal raised under the three certified points.
8. Mr Patten, not discouraged by the judgment of Leveson J on the preliminary issues, sought to raise again before Henriques J the additional points lying outside the three certified points on which he had already sought unnecessarily to claim an entitlement to appeal. However, Henriques J was of no greater assistance to Mr Patten than Leveson J had been, and ruled that all those points could not be raised upon appeal because none of them had been certified.
9. In his application for permission to bring a further appeal to this court, Mr Patten has in the first instance sought to raise again all the matters which he had previously argued before Leveson J and Henriques J. I have before me a detailed notice of application which raises within it what are possibly nine grounds of appeal (numbered A1 to A9), supported by what are described as further grounds under numbered paragraphs 1 to 12. Prominent amongst those grounds is an attempt to raise again by way of appeal to this court his claim for rectification of the court log. Henriques J dealt with that application when it was before him on the appeal below in these terms (at page 5G to 6B of the transcript of his judgment):

"We turn to the application to direct rectification or delivery up of the taxing log of the Crown Court. Having regard to the fact that all issues between the parties have now been resolved, the proceedings below both before the determining officer and the costs judge have been concluded. The only proceedings continuing are this appeal and the taxing log has no possible relevance to it.

It may well be that in order to resolve issues which may arise between parties in costs appeals that occasions may arise when it may be necessary to order delivery up of the log and in appropriate cases rectification thereof, but no such situation prevails here. Accordingly, the application in relation to the log fails."

10. In his brief submissions to me this morning Mr Patten frankly and helpfully accepts that by reason of regulation 16(7) of the regulations the decision of the judge of the Queen's Bench Division who heard his second costs appeal is "final", and that therefore there simply is no jurisdiction in this court to accept any further appeal to it. Mr Patten concedes, therefore, that his costs appeal came finally to an end before Henriques J.
11. Nevertheless, he was concerned as to whether the finality of that appeal pursuant to that regulation, 16(7), covered his separate application for delivery up and rectification of the court log. In my judgment it does. It seems to me that that application for delivery up and rectification of the court log was merely a procedural incident of the costs proceedings. With the conclusion of those costs proceedings the application for rectification of the log has no further life of its own. Therefore the finality provision of the regulation covers the application for rectification of the log as well.
12. Were I to be wrong in that view, the fact nevertheless remains that the only relevance of the application to rectify the log is to meet the evidence of the log, inasmuch as that log bears upon the merits of certain points that Mr Patten has wished to raise in the costs proceedings. In effect, Mr Patten has sought to say that the log is not, as it turns out, the best evidence of the timing and the proceedings in the criminal court, as he would seek to show from other documents such as the transcripts. But those submissions have no relevance at all unless they can bear upon the merits of some substantive part of a costs appeal. Since this costs appeal, as he accepts, is finally at an end, it follows that the question of the correctness of the court log no longer has any relevance. That is indeed what Henriques J said, and in my judgment he was quite right.
13. It follows that not only is it impossible for Mr Patten to say that there is any point of principle or practice or any error which he can seek to bring before this court under its proper procedures, but he also has to accept, as indeed this morning he frankly does, that there is not even any jurisdiction in this court to assist him further.
14. For those reasons, it follows that these proceedings arising out of the taxation of costs subject to the regulations are not merely now at an end, but have already been so since the decision of Henriques J on 14th June 2002.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)