Destination of appeals on costs

R (Lopes) v London Borough of Croydon [2016] EWCA Civ 465, 24 May 2016

L lodged an appeal in the county court under s204 Housing Act 1996. Further evidence was submitted on her behalf during the course of the appeal, following which the parties agreed, that the appeal should be withdrawn. A consent order was drawn up. But it was not approved in time for the hearing, and the parties were required to attend. The Circuit Judge approved the order, which provided for both parties to make written submissions on costs. Submissions were duly filed and another Circuit Judge, on the papers, awarded L 85% of her costs.

Croydon appealed against the costs order. A question arose as to the correct destination for such an appeal, and whether the ‘second appeal test’ should be applied.

Considering the matter together with a number of costs appeals that had arisen in other civil proceedings, the Court of Appeal gave the following guidance, applicable to homelessness appeals and appeals from decisions of district judges, at [54]:

If the county court judge has heard the appeal and ruled on the issues determined by the district judge (including the validity or otherwise of the claims, the relief to be granted and the costs of the hearing before the district judge), any appeal will lie only to the Court of Appeal. Permission must be sought from the Court of Appeal and the second appeal test will apply.

• In respect of the costs of the appeal to the county court, any appeal will lie to the Court of Appeal;
• It would be open to the county court judge to grant permission to appeal to the Court of Appeal in respect of the costs of the appeal to the county court and the normal test for permission will apply. It would also be open to the Court of Appeal to grant permission applying the same test.
• If there has not been what can properly be regarded as a hearing of the appeal, any appeal (which is almost certainly to be one on costs) is to the High Court judge and the normal test will apply.

 Since the judge in this instance had not heard the homelessness appeal, the subsequent appeal on the issue of costs lay to the High Court and the second appeals test was not applicable.

Adrian Berry of Garden Court Chambers' Housing Team acted for L.

Click here for the judgment.