Case No:  B2/2015/0754
Neutral Citation Number: [2016] EWCA Civ 610
IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION)
ON APPEAL FROM THE Romford County Court and Family Court
(lower court judge: District Judge Jackson)

Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 27 April 2016

Before:

LORD JUSTICE JACKSON

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Between:

	LOSON & ANR  	
Applicants	
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BRETT STACK & ANR	

Respondents	

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DAR Transcript of
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The Applicant appeared in person

The Respondents did not appear and were not represented

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Judgment
LORD JUSTICE JACKSON:  

1.	This is an application for permission to appeal.  Mr Emezie, the applicant, is a solicitor and was the principal of the firm of solicitors, CT Emezie, until that firm closed down in I think December of 2012.  

2.	Mr Emezie is the husband of Ms Loson.  On 27 May 2010 Mr Emezie was driving his wife’s car but he parked it in a place which attracted a parking fine.  A parking ticket was duly issued.  The parking ticket was not paid.  Mr Emezie or his wife appealed to the parking adjudicator, but without success.  There were judicial review proceedings which were also unsuccessful.

3.	In due course a firm of bailiffs, called Newlyns, clamped and removed Ms Loson’s car in order to secure payment of the parking fine.  Mr Brett Stack was the employee of Newlyns who actually did the clamping and removal.  Mr Emezie was dismayed.  He and his wife issued county court proceedings against Newlyns as first defendants and Mr Stack as second defendant.

4.	The claimant, who was, at least nominally, Ms Loson, as Mr Emezie’s wife, claimed an injunction to prevent sale of the car and various other financial remedies.  Those proceedings were unsuccessful.  After a two-day hearing in September 2013 District Judge Jackson dismissed Ms Loson’s claim and ordered her to pay the defendants’ costs.  By this stage the case had grown way out of proportion from its humble origins and it was proceedings on the multi-track by order of the circuit judge.

5.	The defendants applied for an order that Mr Emezie be joined as co-claimant and that he be ordered to pay the defendants’ costs of the action.  The defendants made this application under rule 46.2 of the Civil Procedure Rules.  

6.	At a hearing on 12 November 2014 District Judge Jackson ordered that Mr Emezie be joined as a party.  She then adjourned the matter so that Mr Emezie could prepare his case.  At the same time she directed that Mr Emezie should file and serve a witness statement setting out any facts he relied upon in opposition to the application.

7.	Mr Emezie chose not to prepare a witness statement.  Instead, however, he filed written submissions which the judge read carefully and which I too have read carefully.  A hearing of the defendants’ application for costs to be paid by Mr Emezie took place on 8 February 2015 before District Judge Jackson.  The district judge made, amongst others, the following finding of fact:  

“I do accept that Mr Emezie was the architect of these proceedings brought by his wife and that he was the controlling mind.  It seems to me that costs would not have been incurred without his driving force.”

8.	This judge reached this conclusion on the basis of the extensive material before her and also what she saw with her own eyes when the case was proceeding.  In paragraph 7 of her judgment the judge said this:  

“It is suggested that the facts supporting that are as follows:  that in her evidence the claimant had absolutely no idea of how the litigation had been conducted, how her damages had been calculated and appeared bewildered as to what she was doing in court.  It is unclear how and on what basis an appeal was mounted.”

9.	The judge appeared to accept that submission, bearing in mind the two-day trial over which she had presided.  The judge ordered Mr Emezie to pay the defendants’ costs of the action.  Those costs were to be subject of detailed assessment if not agreed.  Mr Emezie is aggrieved by the district judge’s order and seeks permission to appeal to the Court of Appeal.  

10.	Mr Emezie has filed a detailed skeleton argument.  He makes many points in that skeleton argument.  They include the following:  first, he says there was legal professional privilege as between himself and his wife.  Therefore, as a result of that, there were matters which he could not disclose which were relevant to the application for costs being made against him.  He says that the judge failed to recognise the privilege which attached to a solicitor and client relationship.  He was solicitor as well as husband of the nominal claimant in the action.

11.	Then Mr Emezie goes on to refer to the authorities on how the court should exercise its discretion under rule 46.2 of the Civil Procedure Rules and he makes points about the high level of the defendants’ costs and says that there has been a great lack of proportionality in this case.

12.	Finally, he says that the defendants should not have been awarded all of the costs of the application for costs made against him because they did not succeed in obtaining a wasted costs order; they did not succeed in obtaining indemnity costs as they sought; all they had obtained was a non-party costs order.

13.	This application for permission to appeal came before Kitchin LJ on the papers.  Kitchin LJ refused permission to appeal to the Court of Appeal.  He wrote that the applicant was given notice of the application to join him to the proceedings for the purpose of costs and was given a full and fair opportunity to file any evidence upon which he wished to rely.  The district judge properly directed herself as to the relevant principles and the exceptional nature of the order sought, but was satisfied that the applicant was the architect of the proceedings and the driving force behind them.  Moreover, there was no evidence that he was acting as Ms Loson’s solicitor.  Accordingly, the district judge decided, as she was entitled to, that “the applicant should be liable for the costs of the claim.  None of the grounds of appeal would have a real prospect of success and there is no other compelling reason why an appeal should be heard.”  

14.	Mr Emezie is aggrieved by that decision on the papers and he exercises his right of oral renewal today.  Mr Emezie makes the point that he plainly was acting as solicitor for his wife during much of the county court litigation; therefore any suggestion to the contrary is wrong and a legal professional privilege attached to communications passing between them.

15.	I do see the force of that point.  On the other hand, I do not see how the existence of legal professional privilege advances Mr Emezie’s position in relation to the present costs issue.  The order made by the judge was not a claim for wasted costs, where sometimes the existence of legal professional privilege does put the lawyer against whom wasted costs are sought in professional difficulties.  

16.	This is a claim for a non-party costs order on the basis that Mr Emezie was the driving force behind his wife’s claim.  I do not see how anything which is subject to legal or professional privilege could, if revealed, have constituted a defence to that claim.  It was clear from the documentation, from the correspondence and from the course of events in court that Mr Emezie was indeed the driving force behind his wife’s conduct of the litigation.  

17.	There is, in my view, no prospect that the Court of Appeal would reverse the district judge’s finding on that issue; nor in my view is there any prospect that the Court of Appeal would be persuaded to come to a different conclusion merely because dealings between Mr Emezie and his wife were protected by legal professional privilege, at least during the period that Mr Emezie, rather than another firm of solicitors, was acting for Ms Loson.

18.	To be fair to him, Mr Emezie today did not put that point at the forefront of his submissions.  Instead, the point which he put at the forefront of his submissions today was this.  He said that when the district judge made a non-party costs order there had been no assessment of the costs at all; the assessment of costs began subsequently; Costs Officer Lambert carried out an assessment on the defendants’ costs on the standard basis.  

19.	Ms Loson and Mr Emezie were aggrieved by that costs officer’s assessment.  They therefore appealed to a costs judge.  The costs appeal is now part heard.  The hearing began on 3 March 2016; it has been adjourned to 26 July 2016.  Mr Emezie says it is quite wrong to make a non-party costs order before those costs have been assessed.  He points out that it may be that the receiving party in the assessment may get nothing.  For example, the receiving party may take a point on the indemnity principle or find some other grounds for challenging costs as a whole or particular elements of the costs.

20.	I understand that point, but in my view that is not a reason for deferring the application under rule 46.2 until after the assessment of costs has been carried out.  It seems to me that the district judge was right to deal with the application under rule 26.2 when he did.  That meant that Mr Emezie has been able to attend the various stages of the costs assessment as a party to the litigation.  He has been able to make all of his points about the bill of costs first hand.  He is not objecting on behalf of someone else; he is taking the objections on behalf of himself, saying no doubt that this item is too much, that item should not be allowed, and so forth.  

21.	I carefully looked at rule 46.2 and the authorities giving guidance on the application of that rule.  I see no basis for the proposition that no order against a non-party for costs should be made until after the amount of costs has been assessed.  Mr Emezie has urged upon me that the level of costs incurred by the defendants is disproportionate.  This case grew out of control.  He says the defendants’ solicitors ought to have advised the defendants that the case was flying out of control and that steps should be taken to bring it to an end.

22.	This court cannot concern itself with advice which the defendants’ solicitors should have given to the defendants.  The fact is that this case has grown in a most unfortunate and disproportionate manner: new issues have been added to the case; the case was assigned to the multitrack; there is no appeal against the decision to assign it to the multitrack; the case led to a two-day trial with witness evidence on both sides and, unsurprisingly, the costs are substantial.  

23.	I accept that the origins of this litigation are very small: a dispute over a parking ticket; but I do not accept that it is the defendants’ fault that this case has grown out of control.  Mr Emezie, on the judge’s findings, was the driving force behind the litigation: he issued the proceedings on behalf of his wife; he promoted the unsuccessful injunction application; he promoted the other claims which were brought in his wife’s name; he took an active part both as her solicitor and as her husband and, at the end of the day, he has lost on the main issues.  

24.	Mr Emezie can take points about proportionality and about how much costs should be allowed during the course of the assessment of costs; but, so far as the non-party costs order which the judge made under rule 46.2 is concerned, I am quite unable to see any error of principle in the judge’s approach.  The judge had proper regard to the provisions of rule 46.2 and the authorities on the application of that rule.  She directed herself that an order against a non-party for costs should only be made in exceptional circumstances.  She cited the relevant authorities on that rule and directed herself in accordance with their provisions.  The judge rejected the arguments about the level of the defendants’ costs because that was a matter of assessment, not for her on the issue of principle, whether Mr Emezie should be liable for costs.

25.	I have carefully read Mr Emezie’s original skeleton argument to the Court of Appeal and the applicant’s statement, which he has lodged for the purpose of the appeal today.  I cannot see in those documents any argument which might find favour with the Court of Appeal or which might cause the Court of Appeal to allow Mr Emezie’s proposed appeal and to set aside the costs order made against him by the district judge under rule 46.2.  

26.	If I were to give permission it would be no kindness to Mr Emezie.  The appeal would come on before the court; the appeal would fail and Mr Emezie would then be saddled with a very substantial costs order.  Therefore acting in his interests, as well as taking into account the submissions before me, I refuse this application for permission to appeal.

27.	Order:  Application refused