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This Report is referred to in: Bulled v Khayat [9], [11], [11], [13], Gregory v Turner [25], [25], [26], [33], [33], Mount Cook Land Limited v Westminster City Council [70], Philosophy Inc v Ferretti Studios Srl [32], Scribes West Ltd v Relsa Anstalt [5], Slot v Isaac [17].
Neutral Citation Number: [2002] EWCA Civ 277
Case No: B1/2001/2399

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Mr Justice Neuberger

Royal Courts of Justice
Strand, London, WC2 A 2LL

7th March 2002

  Before:

LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
and
LADY JUSTICE ARDEN

Between:

CHRISTOPHER MORTON JOLLY
Claimant/Appellant

and

DAVID EDWARD JAY
and
LINDA ANNE JAY
Defendants/Respondent

Mr Jolly appeared in person
Ms Cheryl Jones (instructed by Seakens & Co) for the Respondents

Hearing date : 7th February 2002

 

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Crown Copyright ©

  

Lord Justice Brooke :

This is the judgment of the court, to which all its members have contributed.

1.   This application for permission to appeal was listed before us in order that the court could have the opportunity of considering the circumstances in which a respondent may be awarded costs after he has resisted successfully an application for permission to appeal. In the event the issues between the parties were for all practical purposes resolved on the day before the hearing, so that there was virtually nothing left for us to decide, so far as issues of costs were concerned. The listing of the application, however, coupled with the assistance we received from counsel, alerted us to a number of inconsistencies and uncertainties about the early stages of the new regime under CPR Part 52, so far as they relate to the position of respondents. The resolution of these problems is clearly one for those who are concerned with the preparation of the rules and practice directions under the CPR regime. We believe, however, that it would be useful for us to draw attention to them in this judgment, and to explain the reasons why respondents are now served with certain documents (such as the appeal notice and the appellant’s request for the reconsideration of a decision to refuse permission) in advance of an appeal court’s decision to grant permission to appeal.
2.   The reason why the present application was of interest to the court was that in the judgment under challenge, a decision of Neuberger J dated 19th October 2001, the judge when refusing the claimant permission to appeal against a decision by a High Court master had made an order for costs in favour of the defendant who had appeared by counsel to resist the application, even though there is no procedure set out in CPR Part 52 or its Practice Direction which envisages that a respondent will appear on such an application (unless the court so directs: see the Practice Directionpdp-52to CPR Part 52 (“CPR 52 PD”) para 4.15).
3.   Although Mr Jolly did not take specific issue in his Notice of Appeal with Neuberger J’s order that he pay £350 plus VAT (which he has already paid), the Civil Appeal Office formally notified the parties on 30th January 2002 that the court wished both parties to appear at the hearing:
  
   “because the Court wishes to consider the proper approach for an appeal Judge to take when a Respondent applies for costs at an oral hearing of an application for permission to appeal following the refusal of permission to appeal on paper.”

The letter continued:

  
   “Lord Justice Brooke has asked me to write to you … to inform you of the question with which the Court will be concerned since the existence of the Judge’s order might affect any order for costs made at the hearing on 7th February if Mr Jolly is not successful.”
4.   These, then, were the circumstances in which the application came before the court for hearing. Mr Jolly, who has appeared before the courts many times in the last few years, appeared in person. Ms Cheryl Jones, who also appeared at the hearing before the judge, appeared for Mr and Mrs Jay. The application was formally listed as an application for permission to appeal (with appeal to follow if permission is given).
5.   Mr Jolly is the claimant in an action for rectification of the register pursuant to section 82 of the Land Registration Act 1925Acts against Mr and Mrs Jay. The action concerns Mr Jolly’s former matrimonial home, Inglewood, Virginia Water, Surrey (“the property”) which was sold to a Mr and Mrs White and then on 4 December 1996 to Mr and Mrs Jay. These transactions have been the subject of a considerable amount of litigation as a result of Mr Jolly’s desire to recover title to the property. We need not summarise all the litigation that has taken place but only some of the salient events.
6.   The sale of the property to the Whites was made under an order of the Staines County Court made in December 1994. The details of what then happened do not matter for the purposes of this judgment. Mr Jolly took proceedings for possession under RSC Ord 113, first against persons unknown, and then against the Whites, which were struck out with costs. Mr Jolly then made an application for rectification of the register, which was refused on 14 November 1996. The Whites had been registered as proprietors with effect from 29 May 1996. Meanwhile Mr Jolly sought permission to appeal against an order dismissing a claim he had made in relation to the prior sale of the property to the Whites’ predecessors. The appeal was heard by the Court of Appeal on 29 January 1997 and dismissed.
7.   In earlier proceedings between Mr and Mrs Jolly, the court declared that the property was held on 50/50 shares by Mr and Mrs Jolly. Mr Jolly appealed against that order but his appeal was unsuccessful. Mr Jolly also pursued other claims in connection with the sale of the property. He claimed damages against his former wife’s solicitors for failing to pass over the full sum of monies due to him with some success, but some of his other claims have been struck out. He has received monies from the sale of the property but claims that not all of his share has been paid to him.
8.   On 18th June 2001 Master Bragge made an order striking out Mr Jolly’s claim in the present proceedings and ordered Mr Jolly to pay Mr and Mrs Jay their costs. These costs have now been paid. Mr Jolly filed a notice of appeal at the High Court against that order, which he duly served on Mr and Mrs Jay’s solicitors pursuant to CPR 52.4(3).
9.   The matter then came before Neuberger J for permission to appeal. Neuberger J refused permission to appeal on paper on 25th September 2001, giving reasons. On 3rd October Mr Jolly made a request for this decision to be reconsidered at an oral hearing and served a copy of his request on Mr and Mrs Jay’s solicitors at the same time (see CPR 52 PD para 4.14).
10.   The High Court informed the parties on 4th October of the date fixed for the renewed application (19th October) in the following terms:-
  
   “The attendance of the appellant is required.
   The respondent(s) may attend or submit written representations before the hearing but will not usually be awarded the costs of doing so.
   If a respondent submits written representations or other written material it must be served on the applicant (or his/her solicitor if any) at least two clear days before the hearing.”
11.   There is no provision in CPR Part 52 or its practice direction for a notice of this kind to be sent to respondents. CPR 52 PD para 4.15 provides:
  
   “Notice of the hearing need not be given to the respondent unless the court so directs. The appeal court will usually so direct if the appellant is asking for a remedy against the respondent pending the appeal.”
12.   The only other provision of CPR Part 52 or its Practice Direction which touches on the possibility that the needs of the respondent are to be accommodated at a renewed hearing of an application for permission to appeal is paragraph 4.16 of the Practice Direction which provides:
  
   “If notice of the hearing is to be given to the respondent, the appellant must supply the respondent with a copy of the bundle (see paragraph 5.16) within 7 days of being notified, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application.”
13.   On 16th October (that is to say, on the final day allowed by the High Court’s letter) Mr and Mrs Jay served a skeleton argument, settled by counsel, and they were represented by counsel at the hearing before Neuberger J three days later. The skeleton argument ended in the following terms:
  
   “In the event that permission to appeal is not granted, [the defendants] ask the Court to award their costs of attending in that this is necessary to ensure that the Court receives an accurate picture of the matter.”
14.   Neuberger J gave a short reasoned judgment dismissing the application. During the course of it he said:
  
   “His application is opposed by Mr and Mrs Jay, who appear through counsel, Ms Cheryl Jones, who has provided me with a skeleton argument, as has Mr Jolly. The position of a respondent to an application for permission to appeal, particularly when that application, having been dismissed, is renewed orally, is somewhat unclear and has not been worked out by the courts. Mr Jolly suggests that it was inappropriate for Mr and Mrs Jay to be represented on this application and to make submissions to me. I do not think those criticisms are justified. The position of a respondent on an application of which he or she has notice, such as the present, namely a renewed application for permission to appeal, is difficult. Some respondents let matters take their course. Some respondents think it right that they should be there with a view to knocking out the appeal if they can. The problem is particularly acute where the applicant is a litigant in person, even a litigant – or perhaps I should say especially a litigant - as persistent and as expert as Mr Jolly. In some cases the court thinks the respondent’s appearance is unhelpful; in other cases it thinks it is helpful; in other cases it thinks it is necessary. In the present case I have certainly found Ms Jones’ skeleton helpful, and I think that any criticism (and to be fair it was not a very strong or bitter criticism, but criticism there has been) of Mr and Mrs Jay’s legal advisers in representing them today, is misconceived. ”

After judgment was delivered, the respondents asked for their costs.

15.   Although they had not served a schedule of costs, they limited their application to the sum of £350 plus VAT, being counsel’s fee for settling the skeleton argument and appearing at the hearing. We do not have a transcript of the judge’s reasons for making his order for costs in this sum, but no doubt he followed the line of thought evidenced in the passage from his judgment which we have quoted.
16.   It is now settled that this court has no jurisdiction to entertain an application for permission to appeal from a decision of an appeal court (see CPR 52(3)(b) for the meaning of this phrase) refusing permission to appeal (Riniker v University College London [2001] 1 WLR 13, a decision founded on the clear language of section 54(4) of the Access to Justice Act 1999). When Mr Jolly filed his notice of appeal Mr Jolly was told by the staff of the Civil Appeals Office that in their view the Court of Appeal had no jurisdiction to entertain his appeal, but he insisted that his notice of appeal should be set down. He repeated this stance when he was told formally by letter a little later that the court had no jurisdiction. In this letter specific reference was made to section 54(4) of the 1999 Act.
17.   When we asked Mr Jolly to explain why he had persisted in requiring his application to be heard by the court, he referred us to CPR 52.13(2), which permits this court to give permission to appeal if it considers that the appeal would raise an important point of principle or practice. He said that at least some of the issues determined by Master Bragge and Neuberger J could be so categorised. In making this submission, Mr Jolly had overlooked the concluding words of CPR 52.13(1), which reads:
  
   “Permission is required from the Court of Appeal for any appeal from that court from a decision of a county court or the High Court which was itself made on appeal.” (Emphasis added).
18.   These words, which allow for the possibility of a second appeal to this court from a decision of an appeal court on a substantive appeal, are to be contrasted with the clear language of CPR 52 PD para 4.8:
  
   “There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 54(4) of the Access to Justice Act 1999 and rule 52.3(3) and (4).”
19.   We are told by the Civil Appeals Office that Mr Jolly is by no means the only litigant in person who has insisted in recent months in pursuing such an application to an oral hearing in this court notwithstanding that the court manifestly has no jurisdiction to entertain it. In future the Civil Appeals Office should not list such applications, which represent a complete waste of the resources of the court (see CPR 1.1(2)(e)). Any case of doubt should be referred on paper to one of the lords justices who supervise the administrative business of the court.
This Paragraph is referred to in: Bulled v Khayat [9], Slot v Isaac [17].
20.   When Mr Jolly was given notice on 30th January 2002 of Lord Justice Brooke’s directions for the hearing (see paras 3 and 4 above) he was once again told that the court had no jurisdiction to entertain an application for permission to appeal the substantive part of the judge’s order. He was told, however, that the court did have power to deal with the judge’s order for costs (see Riniker v University College London (Practice Note) [2001] 1 WLR 13, 16 at para 13). On 4th February he decided to “withdraw” his notice of appeal. He therefore sent a draft consent order to Mr and Mrs Jay’s solicitors (who had by now incurred costs by briefing counsel for the hearing) to the effect that his notice of appeal should be dismissed with no order as to costs. They told him that they would not consent unless provision was made for their costs, which they estimated at £2,000 (including the costs of the hearing). Mr Jolly told them that this figure was “disproportionate to the issue directed to be heard”. He then offered to alter the consent form so that it would read “ordinary costs to be taxed if not agreed”.
21.   He discussed this matter with them over the telephone at about 11.30 am on 6th February, the day before the hearing. They refused to agree to his offer (although they appreciated that their clients would be at risk of any costs incurred subsequent to this conversation). They had already briefed counsel for the hearing and they wished to use the opportunity afforded by the hearing to canvas with the court the possibility of their clients obtaining some form of relief from Mr Jolly, so that they could pursue the sale of their house free from the expense and trouble previously inflicted on them by Mr Jolly in connection with its purchase. They therefore required Mr Jolly to agree that he would not bring any further claims against Mr and Mrs Jay or their successors in title in connection with the property. Alternatively, they hoped that the court would impress finality on Mr Jolly.
22.   Since the notice of appeal was not dismissed by consent, the application had to come before the court. Mr Jolly stood by his offer. At the sitting of the court the respondents, for their part, served on him a document described as a “request” addressed to the court to make what they called an “extended” Grepe v Loam order (see Ebert v Venvil [2000] Ch 484) against Mr Jolly.
23.   Since the application was listed before us in order that we could consider the appropriateness of the costs order made by the judge (see para 3 above) we heard submissions from the parties on this question, notwithstanding the fact that Mr Jolly had never challenged that costs order as such and was standing by his offer to pay the respondents’ standard costs of this appeal, in so far as they had been incurred prior to 11.30 am on 6th February.
24.   Ms Jones told us in this context that the notice of appeal filed in the High Court had contained significant inaccuracies. The court was led to believe, contrary to the fact, that the claimant’s notice of rectification may still have been entered on the title at the date of the purchase. In fact, although it was present on the title when contracts were exchanged, it had been removed by a direction of the assistant land registrar before the purchase was completed. The notice also suggested incorrectly that the Staines County Court had found that the original purchasers failed to complete and had not acquired title or possession.
25.   Mr Jolly refuted any suggestion that he intended to mislead the court by any inaccuracies in his appellant’s notice in the High Court. If there were inaccuracies, the reason for them was, in part at least, that the respondents had failed to produce the relevant documents to him. Moreover, the respondents could have minimised costs simply by writing to the court to correct his errors. They did not need to attend by counsel. He also complained that they had lodged a bundle of documents with the court without giving him a copy or telling him what the bundle contained, although it later transpired that the bundle did not contain any documents which were not familiar to him, being the bundle used by Mr and Mrs Jay at the hearing before the Master.
26.   Ms Jones argued that her clients were entitled to attend the hearing before the judge in order to prevent the litigation progressing any further. Their attendance was justified as the matter was of exceptional concern to them (it involved the potential loss of their home), and because of the inaccuracies in the appellant’s notice and the fact that Mr Jolly acted in person. She reminded us that in his judgment the judge had said that he found counsel’s skeleton argument helpful and that any criticism of Mr and Mrs Jay’s legal advisers was misconceived.
27.   She submitted that the judge was entitled to make the costs order which he did. Mr Jolly’s application was unjustified and was wholly unsuccessful. By seeking an oral hearing he took the risk of an adverse costs order. She accepted that where a respondent was entitled to attend a hearing but not required to do so, the general rule that costs should follow the event would not apply with the same force.
28.   As we have already said (see paras 16 and 20 above), this court has no jurisdiction to entertain an appeal against the judge’s refusal of permission to appeal, but there is jurisdiction to entertain an application for permission to appeal against the order for costs made by the judge on the hearing for permission. A judge may make an order of this kind because the respondent has been given notice of the application pursuant to a specific direction by the court, or, as in this case, because the court has sent him, as a matter of routine, notice of the time, date and venue of the hearing. Alternatively, the respondent may appear on the application simply as a result of learning that an application is to be heard at that time or watching the court lists.
29.   There were at least two existing models on which the draftsmen of CPR Part 52 and its practice direction might have drawn when making provision for the participation of the respondent, if any, in an appeal court’s consideration of the now almost universal requirement of permission to appeal.
30.   They could have drawn on the model afforded by RSC Order 73 rule 2(1)(d) in arbitration proceedings when a would-be appellant seeks leave to appeal to the High Court from an award by arbitrators pursuant to section 1(2) of the Arbitration Act 1979Acts. In such cases the rule prescribes that the application must be made by originating motion to a single judge in court. In The Oinoussian Virtue [1981] 2 All ER 887 Robert Goff J said at p 896 that as a matter of principle if leave to appeal was refused the normal order would be that the applicants should pay the costs.
31.   Another model was afforded by the rules made under section 289 of the Town and Country Planning Act 1990Acts (as amended) which introduced for the first time a rule that the leave of the High Court was required before a challenge could be made to a decision dismissing an appeal against an enforcement notice under the planning laws. RSC Order 94 rule 12(2) required the application, with supporting documents, to be served on certain persons (such as the Secretary of State) identified in rule 13(5). Rule 12(3) provides:
  
   “Any person served with the application shall be entitled to appear and be heard.”

In R v Secretary of State for Wales ex p Rozhon [1993] CAT 27th April 1993 (summarised in [1994] COD 111) this court held, as a general rule, that the costs of an application under O94 r 12 should follow the event.

32.   It is noteworthy that Rose LJ contrasted that procedure (transcript p 10) with the procedure then prescribed by RSC O 53. After saying that applications for leave to apply for judicial review were commonly dealt with on paper without any oral hearing, he continued:
  
   “Furthermore, Order 53 applications are made ex parte and a respondent is in general unaware that such an application has been made unless and until leave is granted. He has no right under the rules either to appear on the application or to serve evidence.” (Emphasis added)
33.   This citation gives a hint of the mischief which CPR 52.4(3) and CPR 52 PD para 4.14 were introduced to cure. After the requirement for permission to appeal had been extended, and before the reforms to the appeals procedures that took effect in May 2000, respondents to appeals often had no idea that a favourable judgment had been appealed until they were served with the notice of appeal some months later. This defect was identified in the Review of the Court of Appeal (Civil Division) (“the Bowman Review”), September 1997, chapter 7, paras 11-13, where the authors expressed the opinion that the position was unfair to respondents. They did not, however, suggest that respondents should take part in the processes leading up to the grant of refusal of permission to appeal, apart from advancing the idea (Chapter 7, para 27 and recommendation 79) that respondents should be allowed seven days in which they might submit any reasons why leave should not be granted. They said:
  
   “Such submissions should not be required, the respondent being entitled to rely on the decision in the lower court and the judgment as his or her submission. If he or she does make a submission, the costs should not be recoverable. It seems illogical, however, to prohibit such a submission, especially as respondents already have the right to apply to have leave to appeal rescinded, where leave to appeal has been granted ex parte (ie in the absence of the respondents).”
34.   This recommendation was not accepted, and it may be that the appropriate authorities will wish to revisit this topic in the light of experience accumulated since the new procedural regime was introduced. In this context, although we appreciate that the judicial review regime is different in significant respects, it is noteworthy that CPR 54.8(4) and 54.12(5), and CPR 54 PD paras 8.5 and 8.6, introduced a year later, contain provisions that do address this question directly.
35.   Given that the aim of the new procedure appears to be to ensure that the respondent is informed of any landmarks in the appeal process (such as the filing of the notice of appeal, or the filing of a request to reconsider a refusal of permission) but is not entitled to take part in the process by which the appellant seeks permission to appeal (unless there is a specific direction of the court to that effect) we believe that it would be helpful at this stage of our judgment to set out the whole of the statutory scheme with this point in mind.
36.   Appeals in civil cases to the county court, the High Court and the Court of Appeal are now governed by a single rule, CPR 52, and the practice direction supplementing that rule. CPR Part 52 provides for respondents to be notified of applications for permission to appeal. By CPR 52.4(3) an appeal notice is to be served on each respondent not later than seven days after it is filed, unless the court orders otherwise. CPR 52 PD para 5.21 specifies that a sealed copy of the appellant’s notice is to be served including any skeleton argument.
37.   CPR 52 PD para 5.22 explains the role of the respondent, when served, in the following terms:-
  
   “Unless the Court otherwise directs a respondent need not take any action when served with an appellant’s notice until such time as notification is given to him that permission to appeal has been given.”
38.   Where an appellant first applies for permission to appeal, he is not required to serve copies of his bundles on the respondent: CPR 52 PD para 5.24.
39.   Paragraphs 4.11 to 4.14 of CPR 52 PD deal with the consideration of permission to appeal without a hearing and require the parties to be notified of the decision given on paper. Paragraphs 4.13 and 4.14 are in the following terms:
  
   “4.13 If permission is refused without a hearing the parties will be notified of that decision with the reasons for it. The decision is subject to the appellant’s right to have it reconsidered at an oral hearing. This may be before the same judge.
   4.14 A request for the decision to be reconsidered at an oral hearing must be filed at the appeal court within 7 days after service of the notice that permission has been refused. A copy of the request must be served by the appellant on the respondent at the same time.....”

Paragraphs 4.15 and 4.16 apply to the permission hearing. We have set out their provisions in paragraphs 10 and 11 above and need not repeat them here. CPR 52 PD does not deal specifically with the costs of the permission hearing.

40.   This practice direction, however, does envisage that an order for costs may be made at the hearing of an application for permission to appeal, since paragraph 14.1 makes provision for the summary assessment of the costs of a hearing of an application for permission to appeal at which the respondent is present. CPR 52 PD para 14.2 requires the parties attending such a hearing to be prepared to deal with the summary assessment.
41.   Reverting to CPR 52 PD para 4.15, research carried out by the staff of the Civil Appeals Office shows that there is no uniform practice of notifying a respondent of the time fixed for any hearing in open court for permission to appeal. While the High Court in London gives notice to respondents (in the absence of any special direction by the court) in the terms in which Mr and Mrs Jay were notified, as set out in paragraph 10 above, other courts do not provide this information to respondents, or they provide it to respondents only if, for example, a stay of the order of the lower court is sought. While, of course, individual cases may require to be deal with in some different way, we consider that civil courts should at least have the same starting point. Otherwise more favourable treatment may be given to respondents in some parts of the country than in others. We invite the appropriate authorities to consider whether the practice should be made uniform, and if so what the common starting point should be.
This Paragraph is referred to in: Scribes West Ltd v Relsa Anstalt [5].
42.   Against this background of the rules and the practice direction, it appears to us to be desirable that we should explain the nature of the respondent’s potential involvement in the preliminary stages of the new appeals process, because this has given rise to a good many misunderstandings in the past.
43.   At the permission stage, CPR Part 52 provides that, except in the case of second appeals, the court should give permission to appeal if (but only if) it considers that there is a real prospect of success on the appeal, or that there is some other reason for the appeal to be heard (CPR 52.3(6)). In the case of a second appeal to the Court of Appeal, the appeal must raise an important point of principle or practice, or there must be some other compelling reason for the Court of Appeal to hear it (CPR 52.13).
44.   Accordingly, a respondent should only file submissions at this early stage if they are addressed to the point that the appeal would not meet the relevant threshold test or tests, or if there is some material inaccuracy in the papers placed before the court. By this phrase we mean an inaccuracy which might reasonably be expected to lead the court to grant permission when it would not have done so if it had received correct information on the point.
45.   If, on the other hand, the respondent wishes to advance submissions on the merits of the appeal (as opposed to the question whether it will pass the relatively low threshold tests for permission) the appropriate time for him to do so is at the appeal itself, if the matter gets that far. In general it is not desirable that respondents should make submissions on the merits at the permission stage, because this may well lead to delay in dealing with the permission application and take up the resources of the appeal court unnecessarily.
46.   Respondents will not be prejudiced at the appeal itself by having refrained from filing or making submissions at the permission stage, since this is essentially a “without notice” procedure. Attention should be paid, however, in this context to CPR 52.9(3): where a party was present at a hearing at which permission to appeal was granted, he may not subsequently apply for an order that the court should exercise any of its powers under sub-paragraphs (1)(b) or (1)(c) of that rule.
47.   Where an application for permission is to be determined on paper, any submission from the respondent must be in writing. Even in the event of an oral hearing a respondent should consider whether he can make his submission equally well in writing, particularly as he may not be allowed the costs of his attendance at the hearing. In very many cases a written submission will be sufficient, given the preliminary nature of the application and the fact that the respondent has no entitlement to address the court unless the court has made a specific written direction that he may do so, or grants him such permission at the hearing.
48.   If a respondent applies for an order for costs in his favour, it is against this background, pending any further assistance that may be given in a Practice Direction, that the court should determine whether any such order should be made at all, and if an order is made, whether it should cover the costs of attending the hearing (as opposed to the costs which would be appropriate to cover a concise written submission). On every occasion, of course, the award of costs will be a matter for the discretion of the individual judge.
This Paragraph is referred to in: Mount Cook Land Limited v Westminster City Council [70].
49.   So far as the present application to this court is concerned, no particular difficulty arises because the respondents prepared their representations following a specific direction of this court. Once Mr Jolly decided to withdraw his application and offered to pay the respondents’ costs on a standard basis, his liability to pay their costs terminated. The respondents were not then entitled at his expense to insist on the matter being heard in open court, or to require him to undertake or agree not to bring any further claim against them or their successors in title as owners of the property. They should therefore pay Mr Jolly’s costs after that time. For this reason we announced at the end of the hearing that the application was dismissed on terms that the appellant should pay the respondents’ costs of the application down to 12.00 noon on 6 February 2002, and that the respondent should pay the appellant’s costs incurred thereafter.
50.   So far as the respondents’ request for a Grepe v Loam order was concerned, we directed that (if so advised) they should be at liberty in these proceedings to issue an application for such an order in the Chancery Division.
51.   Finally, we have been invited by the Civil Appeal Office to clarify one further matter which is giving rise to difficulties in practice. As we have already said, if a lower appeal court refuses permission to appeal, there is no right of appeal against its ruling. There is, however, a right to appeal against any order for costs (or some other ancillary order, such as an order refusing an adjournment) made on that occasion. The question has arisen whether an appeal against such an order, when made by a circuit judge, lies to a High Court judge or to the Court of Appeal.
52.   Such an appeal lies to a High Court judge as a “first appeal” (see the Access to Justice Act 1999 (Destination of Appeals) Order 2000, article 2). It is not excluded from the ordinary appeal route by Article 4 (which is concerned with appeals against final decisions, an expression which does not embrace an order made at a permission hearing) nor by Article 5 (which is entitled “appeals where decision itself was made on appeal”). In the circumstances we are now considering, the circuit judge is not making a decision “on hearing the appeal” (being the language of Article 5 (b) of the Order). He is making a decision in the course of refusing to hear an appeal.