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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 >> Peters v Peters [2013] EWCA Civ 1688 (28 November 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1688.html Cite as: [2013] EWCA Civ 1688

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HER HONOUR JUDGE WADDICOR)

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 2013

1. LORD JUSTICE TOMLINSON: This is an application for permission to appeal which is brought by Mr Raymond Peters in relation to certain orders made in contested matrimonial proceedings.
2. The history of the matter is very considerable, and it is quite unnecessary for me to go into it. It suffices to say that on 30 October 2012 the applicant made two applications in the Brighton County Court to Her Honour Judge Waddicor. One was for permission to appeal the order of District Judge Robinson made in June 2010. The second was an application for permission to appeal against an order made by District Judge Robinson on 11 July 2012. Judge Waddicor refused both applications.
3. So far as concerns the first application, she refused it because an appeal had in fact already been brought in respect of the order of Judge Robinson of June 2010 and determined by His Honour Judge Hollis, who had dismissed the appeal on 19 December 2010. Unsurprisingly, the judge directed that the applicant should pay the costs, that is to say the costs of the respondent incurred in and about the application for permission to appeal, on an indemnity basis.
4. Secondly, so far as concerns the order of 11 July 2012, which amongst other things was an order that Mr Peters should pay to his former wife a lump sum of £87,000-odd, the judge again dismissed the application for permission to appeal, save only that she reserved the position concerning the costs order made by the judge below. She directed that the applicant should pay the costs of the respondent to be assessed on the standard basis, which of course were the costs of the respondent incurred in and about resisting the application for permission to appeal.
5. So far as concerned the order for costs made by District Judge Robinson on 11 July 2012, the application for permission to appeal was adjourned and some consequential directions were made. These included that the applicant should file and serve on the respondent by 27 November 2012 a transcript of that part of the hearing on which he proposed to rely, and that if he failed to comply with that direction, the balance of the application for permission to appeal should stand dismissed and the applicant would have to pay the respondent's costs on the standard basis.
6. Had the transcript been served in time, there would have been a further hearing at which the judge would have considered whether it was appropriate to grant permission to appeal against the order of the district judge concerning costs, which was an order that Raymond Peters should pay Yelena Peters' costs from 1 January 2012 to be assessed if not agreed.
7. In the event, Mr Peters did not serve a copy of the transcript as directed. He has explained to me that he was unable to afford a copy of the transcript. However that may be, what then occurred, and this was dealt with in correspondence, was that on 8 January 2013 an order was made on the basis of the papers reciting that the applicant, Mr Peters, had failed to comply with paragraph 5 of the order of 30 October 2012, in which circumstances the application for permission to appeal the order for costs made by District Judge Robinson on 11 July 2012 was dismissed. The applicant, Mr Peters, was again ordered to pay the costs of the respondent to be taxed on the standard basis if not agreed.
8. Mr Peters has sought permission to appeal in respect of paragraphs 2 and 4 of the order made by Her Honour Judge Waddicor on 30 October 2012. Permission to appeal will only be granted in circumstances where an appeal has a real prospect of success, and it is well known that it is particularly difficult to seek to persuade this court to interfere with a judge's discretionary award of costs.
9. So far as concerns paragraph 2, bearing in mind that what the applicant was seeking to do was to obtain permission to appeal in respect of a judgment where there had already been a substantive appeal, which appeal he had lost, it was inevitable that the application would be dismissed with costs, and moreover, entirely appropriate that the costs should be ordered to be paid on the indemnity basis. No issue of principle there arises, nor does the applicant have any prospect whatsoever of seeking to persuade this court to interfere with that order.
10. So far as concerns paragraph 4 of the order, again the position is that the applicant had made an application for permission to appeal which had failed. The normal order in matrimonial proceedings will undoubtedly be that an application for permission to appeal having been pursued but failing, it would be dismissed with costs. The costs on this occasion were to be assessed on the standard basis rather than on the indemnity basis, that application for permission to appeal not having the egregious feature of the first application that an appeal had already been brought and lost.
11. Finally, although not formally covered by the appellant's notice, Mr Peters complains in respect of the order for costs made against him on 8 January 2013, because, he says, it is unfair that he should have to bear the costs in relation to that aspect of the application, bearing in mind that it was his inability to obtain a copy of the transcript because of his financial difficulties which led to his permission application failing.
12. As I have pointed out to Mr Peters, the additional costs generated by the exercise on 8 January 2013 must be very slight, but I suppose there is also scope for it to be said that the costs which are encompassed within that order of 8 January 2013 include that part of the costs incurred in relation to the hearing of 30 October 2012, which related to the costs aspect as opposed to the more general aspects of the application for permission to appeal in relation to the order of District Judge Robinson made on 11 July 2012.
13. Even so, the fact remains that the applicant had made an application for permission to appeal which inevitably involved, or is likely to have involved, the respondent party in the incurring of costs in meeting and resisting that application. Again it seems to me, for the sake of completeness, that there is no basis upon which it can be said that the learned judge erred in principle or reached a conclusion which was outside the generous ambit within which a discretionary decision might be reached.
14. There is no prospect of the Court of Appeal interfering with an order for costs made in those circumstances.
15. As I have indicated, strictly speaking the only matters before the court are paragraphs 2 and 4 of the order of 30 October 2012, but it is I hope helpful simply to indicate that there is no prospect of the Court of Appeal interfering with any of the costs orders made by Judge Waddicor in relation to these failed applications for permission to appeal.
16. I am conscious that Mr Peters feels very strongly about the entirety of this litigation, and in particular feels that a judgment was reached which was simply wrong, but as I think Thorpe LJ attempted to explain on an earlier occasion, that is nothing to the point when it is being considered whether or not permission to appeal should be granted to this court.
17. For all those reasons, therefore, I regret that I cannot grant permission to appeal.