Paul Anthony Axton & Christine Axton –v- (1) GE Money Mortgages Limited (2) The Money Group (Cornwall) Limited  EWHC 1343 (QB)
High Court rejected an argument by an appellant that costs should not be summarily assessed until after their further appeal had been heard
The Claimants/Appellants entered into a series of four fixed sum loan agreements with the 1st Defendant/Respondent between 2000 and 2004, each of which were sold to the Claimants by the 2nd Defendant, who also arranged Payment Protection Insurance (PPI) for the first three agreements. The Claimants subsequently brought a financial mis-selling claim against the Defendants on the grounds that they had acted in breach of contract, were in breach of fiduciary duty and other duties of care.
The Defendants duly filed their Defence, denying liability. In addition, the 1st Defendant filed an application to strike out the claim against them on the grounds that the Particulars of Claim disclosed no reasonable grounds of bringing the claim. They also applied for summary judgment to be entered in their favour on the ground that they the claim had no real prospect of success. Meanwhile, judgment was entered against the 2nd Defendant, though the judgment was then set aside. The Claimants therefore applied for permission to appeal the summary judgment. The appeal was ultimately heard by the High Court, where it was dismissed on the grounds that the test in CPR 24.2 was satisfied.
As the losing party, in accordance with the general rule, the Claimants/Appellants accepted that they would have to pay the Defendants/Respondents costs, however, they indicated their intention to seek permission from the High Court for a further appeal and also that they would apply for a stay of any costs order against them.
As the hearing had lasted less than a day, CPR 44 PD 9.2(b) applied as follows;
“…the order may deal with the costs of the whole claim, unless there is good reason not to do so, for example where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.”
Mrs Justice Slade DBE did not consider the Claimants/Appellants intention to seek a further appeal as a “good reason” and therefore proceeded with the summary assessment, mindful of the fact that if an appeal was considered to be a “good reason” it would then be open to every unsuccessful party to use it as a way of avoiding summary assessment and to delay the payment of costs. Any decision to delay the summary assessment would therefore, in effect, amount to a stay, which would run contrary to CPR 52.7.