Court of Appeal dismisses Rule 52.9A application to limit recoverable costs (JE (Jamaica) v SoS for Home Dept)

Court of Appeal dismisses Rule 52.9A application to limit recoverable costs (JE (Jamaica) v SoS for Home Dept)

The Court of Appeal has dismissed an application for a limited recoverable costs order under CPR 52.9A (Orders to limit the recoverable costs of an appeal) in JE (Jamaica) v SoS for Home Dept [2014] EWCA Civ 192.

In doing so, the court held the application was too late and was, in any event, for an order the court had no power to make. This judgment is a useful clarification of the scope and limitations of Rule 52.9A.

It also offers practical guidance to practitioners whose appeal comes from a first instance court with a limited or excluded costs recovery regime, including that any such application should be made promptly.

Summary and practical implications

In dismissing the application for an order to limit costs recoverability, the Court of Appeal held that CPR 52.9A:

  • is intended to 'enable the appeal court to put in place a similar regime to that which applied in the court or tribunal below'
  • is not intended to provide for one-way costs shifting (which is effectively what the applicant sought here)
  • is only applicable, and then only where the application is made promptly, where the first instance costs recovery regime is limited or excluded, ie where the appeal comes from a 'low costs' or 'no costs' jurisdiction

Practical guidance

In doing so, it also offered practical guidance in relation to such applications, including:

  • where you have come from a 'low costs' or 'no costs' jurisdiction, consider whether CPR 52.9A might apply
  • if so, consider whether you would like to apply for any limitation on costs recoverability. It may be that you do not want to limit any costs recoverability
  • where you would like to make such an application, do so promptly. This is so the parties know what costs regime they are proceeding under. CPR 52.9A(4) requires the application to be made 'as soon as practicable'. In terms of what this means in practice, the Court of Appeal indicated:
    • this does not mean immediately—it is appreciated the parties will require some time to consider their positions
    • it may be both 'convenient and economic' to make this application within the appellant's notice. However, this is not required under the rules and it may be that this is too early as the 'parties may need time to consider their position once they know whether permission to appeal has been granted and upon what grounds'
    • 'a sensible cut-off point' might be two weeks after the respondent has been notified of the grant of any permission to appeal (and which is when it is required to serve any respondent's notice). However, this will not be an appropriate time-frame in every case particularly as, under CPR 52.9A(2)(b), the court will have regard to all the circumstances of the case when determining such an application
    • a week before the listed appeal hearing date was too late here
    • this judgment should be noted by practitioners. Lord Justice Jackson expressed the hope that 'no such application will ever be made again on the eve of an appeal'
  • although this application was heard, the normal course is for such an application to be determined on the papers. Further, there will usually be no scope to challenge the court's decision on such an application save for where 'the court has made a clear error of principle'

Subscribers to Lexis®PSL Dispute Resolution can find more information on various issues raised in this judgment: Appeals—general and preliminary considerations—overview and Practice Note: Costs recoverable on an appeal.

This article was first published on Lexis®PSL Dispute Resolution on 3 March 2014. Click here for a free 24 trial of Lexis®PSL.

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