Charles Elphicke v Times Media Limited [2025] EWHC 1554 (KB)

[2025] EWHC 1554 (KB)Case No KA-2024-000231IN THE HIGH COURT OF JUSTICEHIGH COURT APPEALS CENTREVenue ROYAL COURTS OF JUSTICEON APPEAL FROM THE ORDERS OF MASTER MCCLOUDDATED 14 OCTOBER 2024 AND 19 NOVEMBER 2024Claim No. QB-2019-001414Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/06/2025
Before
MRS JUSTICE HILL
Between
CHARLES ELPHICKEAppellantTIMES MEDIA LIMITEDRespondent
The Appellant appeared in person for in personBen Silverstone (instructed by Reynolds Porter Chamberlain LLP for RespondentHearing Hearing date: 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 20 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE HILLThis is a case in which anonymity and reporting restriction orders have been made, as set out at [4] of the judgment. It may be a contempt of court to breach these orders.

Introduction

[1]This is a renewed application for permission to appeal, permission having been refused on the papers by Sir Stephen Stewart by order sealed on 21 March 2025.[2]The Appellant seeks permission to appeal the costs orders of Master McCloud dated 14 October 2024 and 19 November 2024, arising out the Appellant’s discontinuance of his claims against the Respondent. He advances five grounds of appeal.

The procedural history

[3]The Appellant is a former Member of Parliament. On 17 April 2019 he brought proceedings against the Respondent relating to three articles published in The Sunday Times. He sued in misuse of private information in respect of all three articles, and in defamation in relation to two of them. The defamatory meaning of the latter two articles was that there were reasonable grounds to suspect that he was guilty of rape.[4]On 30 November 2021 Nicklin J ordered that the names of the complainant who had made the allegations of rape and a defined “Further Individual” should be withheld from the public in proceedings before the court and that they should be referred to for all purposes in the litigation as, respectively, “BDL” and “HVN”. He also ordered that pursuant to the Contempt of Court Act 1981, s.11 and the Human Rights Act 1998, s.6, the publication of the names of BDL or HVN or any particulars calculated to lead to their identification is prohibited. That order remains in place.[5]On 22 March 2022, after the exchange of witness statements, and 6 weeks before the trial was due to start, the Appellant discontinued the claim.[6]On 30 June 2022 the Respondent applied for an interim payment on account of costs in the sum of £260,000, pursuant to the presumption that the discontinuing party will pay the other party’s costs set out in CPR 38.6.[7]On 6 January 2023 the Appellant cross-applied for an order disapplying the presumption, such that his costs liability to the Respondent would be extinguished or reduced.[8]The Master heard the applications over three hearings, on 14 February 2023, 14 June 2023 and 14 March 2024.[9]On 14 October 2024 the Master handed down a lengthy judgment, giving reasons for orders that(i) the Appellant should pay 80% of the Respondent’s costs, on a standard basis, to be assessed if not agreed;(ii) the Appellant should make an interim payment; and(iii) the Appellant should pay 80% of the Respondent’s costs of the applications. The parties provided written submissions as to the level of the interim payment and on permission to appeal.[10]On 19 November 2024 the Master ordered that the interim payment should be in the sum of £229,848.41, including an element for the Respondents’ costs of the applications, to be paid within 28 days of the date of the order. On the same date the Master refused permission to appeal.[11]On 4 December 2024 the Appellant lodged his appeal with this court. On 20 March 2025 Sir Stephen Stewart refused permission to appeal, giving detailed reasons in the order.[12]The Appellant renewed the application for permission, as is his right. Both parties made comprehensive and well-structured written and oral submissions. The Respondent relied on Sir Stephen Stewart’s reasoning but identified some further grounds on which it was said permission should be refused.[13]The renewal hearing on 10 June 2025 was given a time estimate of 1 hour. The parties’ submissions, in particular those of the Appellant, ultimately lasted just over 2 hours, such that it was necessary to reserve judgment.

The legal framework

(i) : Relevant key provisions

[14]Under CPR 38.6(1): “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant”.[15]In Brookes v HSBC Bank [2011] EWCA Civ 354 at [6], Moore-Bick LJ, with whom Arden and Ward LJJ agreed, gave the following guidance on the application of the CPR 38.6 presumption:
“(1) when a claimant discontinues the proceedings, there is a presumption by reason of that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position; (2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so; (3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption; (4) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption; (5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed; (6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”
[16]These principles were approved by the Court of Appeal in Nelson’s Yard Management Co. Ltd and Ors v Eziefula [2016] EWCA Civ 235. In Nelson’s Yard, the court reiterated that it is not the function of the court considering costs to determine whether the claim would have succeeded.[17]The court’s general discretion with respect to costs is set out in CPR 44.2(1)-(7).[18]CPR 44.2(8) provides that “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”. (ii): Appeals in general[19]Under CPR 52.21(3), the appeal court will allow an appeal where the decision of the lower court was “(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.[20]The White Book 2025 at paragraph 52.21.5 explains that “wrong” in CPR 52.21(3)(a) means that the court below(i) erred in law or(ii) erred in fact or(iii) erred (to the appropriate extent) in the exercise of its discretion.[21]Under CPR 52.6, except where rule 52.3B, rule 52.7 or Rule 52.7A applies (which they do not), permission to appeal may be given only where “(a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard”.[22]The Appellant relied on Augousti v Matharu [2023] EWHC 1900 (Fam) at [22]-[25], which cited Re R (A Child) [2019] 2 FLR 1033 at [31] and AO v LA [2023] EWHC 83 (Fam) at [28], for the propositions that(i) there must be “a realistic, as opposed to a fanciful”, prospect of success;(ii) there is no requirement that success should be “probable, or more likely than not”; and(iii) a degree of likelihood of at least 25% would normally be needed to satisfy the real prospects of success test. The Respondent took no issue with these general principles. (iii): Appeals involving issues of discretion[23]The two orders under appeal addressed liability for costs following discontinuance under CPR 38.6, orders for payment of costs under CPR 44.2(1)-(7) and orders for interim payments on account of costs under CPR 44.2(8). These were all matters requiring the exercise of discretion.[24]Accordingly, before an appeal court could interfere with the Master’s orders, the Appellant would have to show that the Master had either “erred in principle” in the approach, “left out of account, or taken into account” some feature that should, or should not, have been considered, or that the Master’s decision was “wholly wrong” through a failure to “balance…the various factors in the scale”: AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 at 1523, citing Roache v News Group Newspapers Ltd [1998] EMLR 161 at 172.[25]Put another way, the appellate court should only interfere with the exercise of discretion where it has “exceeded the generous ambit within which reasonable disagreement is possible”: Islam v Ali [2003] EWCA Civ 612 at [19] and the cases cited therein.

The Master’s reasons

[26]The Master gave an unusually detailed level of consideration to the costs issues in this case. She received oral submissions at three hearings and further written submissions. She provided a lengthy judgment dated 14 October 2024 addressing the issues of principle; followed by an order dated 19 November 2024 giving detailed further reasons as to the level of the interim payment.

(i) : The Respondent’s conduct of the litigation

[27]The Respondent had admitted a breach of CPR 32.12(1) which provides that “Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served”. The Respondent accepted that it had wrongly made collateral use of a witness statement in the proceedings for the purposes of various publications in the newspaper and on social media after the claim had been discontinued. The Master had heard detailed submissions at the first hearing about whether some form of committal process ought to be commenced. The parties agreed that a penal notice would be attached to an order made by the Master to the effect that the Respondent must not repeat its breach of CPR 32.12(1): see the Master’s judgment at [22]-[23] and [33]-[37].[28]The Appellant submitted to the Master that(i) there had been a persistent, misconceived denial of the breach by the Respondent for around 9 months;(ii) the Respondent’s actions had caused significant damage the administration of justice; and(iii) the Respondent had failed to take steps adequately to remedy the breach: [38]-[42].[29]The Appellant contended that the Respondent had also breached its duty under CPR 31 and PD31B to preserve evidence when on notice of proceedings or likely proceedings, including by the loss or destruction of a journalist’s electronic telephone information: [51]-[58].[30]The Appellant also submitted that there had been a failure by the Respondent to engage in appropriate pre-action conduct and in alternative dispute resolution: [43]-[50] and [59]-[67]. The Respondent denied these allegations: [47] and [85]. (ii): The legal principles[31]The Master set out the Brookes principles at [71] and [102].[32]At [96], she reiterated that the Court of Appeal has disapproved of disapplying the usual starting point that costs follow the event too readily: see, for example, Fox v Foundation Pilling [2011] 6 Costs LR 961 at [62].[33]The Master referred to the judgment of Arden LJ (as she then was) in Abbott v Long [2011] EWCA Civ 874, for the following principles.[34]First, if the court is going to deprive a party of course on the grounds of misconduct which has not been causative of a waste of costs “it should be satisfied that the sanction is a proportionate sanction”: Abbott at [16], cited by the Master at [68].[35]Second, the court is entitled in an appropriate case to say that the misconduct is so egregious that a penalty should be imposed upon the offending party; but there is a need for some caution: “lies are told in litigation every day up and down the country and quite rightly do not lead to a penalty being imposed in respect of them”: Abbott at [14], quoting Widlake v BAA Limited [2009] EWHC Civ 1256 at [41], cited by the Master at [98]. (iii): CPR 38.6 and the appropriate costs order[36]Having dealt with a series of issues that do not feature in this appeal, the Master addressed the question of whether it was appropriate to depart from the CPR 38.6 presumption at [119]-[130] of the judgment.[37]She concluded that failures of ADR and alleged failures of other pre-action conduct, if established, would not reach the level of “cogent reasons” required for departing from the presumption (see Brookes at [10]). These issues were, however “very apt” to be considered by the Cost Judge during the detailed assessment process: [123].[38]The Master noted that the wrongful collateral use of witness statements and failure to preserve evidence when on notice to do so had not been meaningfully disputed by the Respondent. Observing that these “unusual” failures “went to the heart of the fairness of the proceedings” and (in the case of misuse of witness statements) could have implications for the wider administration of justice, the Master concluded that these findings of conduct by the Respondent justified “opening the CPR 38.6 gateway”. The Master concluded that it was only appropriate to take into account that conduct in deciding what costs order to make, leaving the Cost Judge to examine the other conduct issues during the detailed assessment process, under CPR 44.11: [124]-[126].[39]Describing the two failures as “serious”, the Master observed that the Respondent’s very late acceptance that there was a breach in relation to the witness statements was an aggravating factor: [127].[40]Balanced against that were the “internal steps taken to seek to improve working methods” within the Respondent which were “relevant and mitigating”: [128].[41]However, there had not been a voluntary or other open statement to the public accepting that the material was wrongly used or that The Times had taken steps to prevent it happening in future. The impact on potential witnesses in other cases of seeing witness material appearing in newspapers before it has been given in court, especially in a case where rape allegations were referred to, even if taken down from the internet afterwards, was a factor the court had to take into account. So too was “the basic necessity to abide by rules and court orders, and the duty of the court to ensure that litigants obey those rules and orders, and the placing at risk of the fairness of the trial had one taken place in this case”: [128].[42]Reiterating the need to be proportionate and the guidance in Abbott, at [129] the Master concluded that it was appropriate to “mark the seriousness of the failures in this case, of which the misuse of statements is marginally the more significant, by way of a variation to the default order such that the [Appellant] shall pay 80% of the [Respondent’s] costs on the standard basis to be assessed if not agreed”. All other alleged misconduct was a matter for the Costs Judge under CPR 44.11: [129]-[130]. (iv): An interim payment on account of costs[43]The Master observed that(i) there is a presumption that an interim payment on account of costs will be ordered;(ii) the misconduct matters had been addressed in relation to CPR 38.6; and(iii) using them as a basis for not ordering a payment on account would be to “double penalise” the Respondent. On that basis she ordered that there should be an interim payment and indicated that directions would be given for the determination of the level of that payment: [131]-[132].

(v) : Costs of the applications

[44]The Master concluded that the Respondent had “succeeded in defending its entitlement to costs save as to a 20% reduction”. On that basis the Master concluded that it was appropriate that the Appellant pay 80% of the Respondent’s standard basis costs of the applications to be assessed if not agreed. Again directions would be given for the determination of the level of payment on account of these costs: [138]. (vii): The level of the payment on account of costs[45]Having received further written submissions from the parties by her order dated 19 November 2024, the Master required the Appellant to make a payment on account of the Respondent’s costs in a sum equal to 80% of budgeted costs (subject to the prior deduction of the 20% sanction) and 50% of unbudgeted costs. This figure was calculated at £229,848.41, including a payment on account of the Respondent’s costs of the applications.[46]On the face of the order the Master(i) set out the relevant principles applicable to the determination of the level of payments on account;(ii) rejected the Appellant’s argument that the Respondent’s conduct was a reason to depart from the presumption in CPR 44.2(8) as to the ordering of an interim payment;(iii) noted that interim payments at the level of 90% of budgeted costs are commonly ordered;(iv) concluded that given the number of misconduct allegations in this case other than the two which had led to the opening of the CPR 38.6 gateway, it was appropriate only to order the payment of 80% of budgeted costs;(v) fixed the payment on account of unbudgeted costs at 50% given the number of live conduct issues;(vi) accepted the Respondent’s contention that a payment on account of 50% of the costs of the applications after the 20% reduction imposed by the Master as a sanction was appropriate; and(vii) rejected the Appellant’s argument that he should have a period of 3 years to make the interim payment, instead ordering payment within the usual 14 day period (although the Respondent agreed to a 28 day period for payment, which was reflected in the final order). Submissions and analysis Ground 1: The order that the Appellant pay 80% of the Respondent’s costs[47]The Appellant’s case under ground 1 is that the Master erred in principle and exceeded the discretion available to her in the making of the costs order in several respects. (i): The allegations of misconduct against the Respondent which opened the CPR 38.6 gateway[48]The Appellant argues that the authorities illustrate that whenever the CPR 38.6 presumption is displaced by misconduct as serious as that found in this case, no order for costs, or a costs order in favour of the Claimant, is appropriate.[49]He relies on Ashany v Eco-Bat Technologies Ltd [2018] 3 Costs LO 38. The claimants had discontinued their claim in circumstances where the principal reason for the claim had been to secure copies of a particular email and where they had, eventually achieved that objective; and where the defendant was found to have behaved unreasonably. The Court of Appeal upheld the Master’s finding that the presumption in CPR 38.6 should be displaced, such that for the first period of time under consideration the claimants should have their costs and for the third period there should be no order for costs: [24]-[39]. However, these were both decisions reached on their own facts, and they do not generate any general principles to be applied in other cases.[50]The Appellant also cites Earles v Barclays Bank [2009] EWHC 2500 (Mercantile). The defendant had succeeded at trial and was therefore prima facie entitled to its costs under CPR 44.3. However, the trial judge, HHJ Simon Brown QC had concerns about the defendant’s conduct with respect to disclosure and electronic disclosure. He therefore decided that the defendant was only permitted to recover 50% of those costs: [67]-[77]. Earles did not involve a discontinuance, so CPR 39.6 was not in issue. It is of no real application to this case.[51]In his supplementary skeleton argument the Appellant refers to Clarke v Guardian [2025] EWHC 222 (KB), for the proposition that the duty to preserve evidence is taken very seriously. However, the Master recognised that the obligation to preserve evidence is an important one in her judgment at [124] and [127]: see [38]-[39] above. The findings in Clarke do not assist the Appellant in showing that the Master’s costs order, consequential on her finding about the nature of this obligation, and the Respondent’s breach of it, was wrong.[52]Therefore, none of these cases generate the principle or “expected” order after the displacement of the presumption in CPR 38.6 for which the Appellant contends. The Appellant was unable to take me to any authority which provides such a gloss on the Brookes guidance. Rather, the guiding principles remain those in Brookes. If a judge decides to displace the CPR 38.6 presumption, applying Brookes, there are a wide range of options open as to the costs order that follows, in the exercise of the judge’s discretion. (ii): Further allegations of misconduct against the Respondent, which should have opened the gateway[53]The Appellant argues that the Master should have concluded that as well as the failure to preserve evidence and the misuse of witness statements, the CPR 38.6 gateway was opened by two further instances of the Respondent’s conduct: lying in pre-action correspondence and failing to engage in ADR. He submits that once CPR 38.6 had been disapplied, it was properly to be treated as disapplied for all purposes and all conduct therefore fell to be taken into account.[54]The Master summarised the evidence and submissions on the alleged lying at [44]-[47] of her judgment. In essence, the Appellant had pleaded that one of the Defendant’s employees who was a qualified solicitor working in the Defendant’s internal legal department had lied in pre-action correspondence, by asserting that the Metropolitan Police Service had interviewed him over at least two rape allegations, when this was incorrect. The allegation was robustly denied in the Respondent’s Defence, which contained its own version of events. Although some evidence from the Metropolitan Police appeared to support the Appellant’s position, this was a heavily contested issue that would have required live evidence at trial, where it would have been a key issue on liability and quantum.[55]The Master was therefore entirely justified in concluding that this stage of the litigation was “not the venue or time…to determine what were contentious and live issues over behaviour for trial and which were abandoned on discontinuance. To decide otherwise would be to re-litigate those points”: [117]; and that this allegation, and that of failing to engage in ADR, were more apt to be considered (in the absence of a trial) by the Costs Judge, who would have “the full opportunity to consider the material such as letters, attendance notes and so forth in detail and if necessary use her powers under CPR 44.11”: [123]. She observed that such matters commonly arise on detailed assessment. The Master’s reasoning in this regard was not contrary to principle or outside the generous ambit within which reasonable disagreement is possible.[56]This was a different position to that in Ashany, where the Master had been entitled, on information before her, to find that a particular email was included within a Board resolution, and where the proceedings had been discontinued because the claimants had achieved their objective of securing disclosure of the email: [6]. It is also distinguishable from Widlake on which the Appellant also relies. There, the findings of dishonesty against the claimant which led to adverse costs consequences had been made at trial.[57]The Appellant also cites PGF II SA v OMFS Company & another [2013] EWHC (KB) 1288, Laporte & Christian v Commissioner of Police [2015] EWHC (KB) 371 and Wales v CBRE Managed Services Ltd [2020] EWHC (KB) 1050 as examples of cases where a refusal to engage in ADR without a good reason or an inadequate reason may result in a costs reduction. However, in none of these cases, all of which rely on their own facts, had the Claimant discontinued. Accordingly, the CPR 38.6 framework was not in issue.[58]Further or alternatively, the Appellant contends that given the Master considered that the ADR and pre action protocol matters were unclear for the purposes of summary determination, she should have remitted all the conduct issues to detailed assessment. I disagree. It was necessary for the Master to make a costs order setting the overall parameters, with the detailed assessment process then addressing the relevant amounts of costs, including by reference to CPR 44.11. (iii): The 20% percentage reduction to the Respondent’s costs[59]The Appellant submits that the 20% reduction in the Respondent’s costs was so low, given the serious nature of the Respondent’s misconduct, that the Master’s decision was outwith the generous ambit of discretion within which reasonable disagreement is possible. I cannot accept this submission. 20% was a substantial reduction, particularly given the high level of the Respondent’s costs claimed. Other Masters may have imposed a greater reduction, others less, but this was a decision comfortably within the Master’s discretion.[60]The Appellant also complains that the Master did not particularise how the 20% was arrived at, except to say that the collateral use of the witness statement was “marginally the more significant” than the failure to preserve evidence. Nor did the Master particularise the mitigation “credit” given to the Respondent. He posited that the Master’s comments suggested that the 20% costs reduction would imply a 9% reduction for the failure to preserve evidence and 11% for the collateral use of the witness statement. These figures are entirely speculative. The Master weighed up the severity of the two aspects of the Respondent’s misconduct and assessed, in the round, that a 20% reduction figure was appropriate. To the extent that this is effectively a “reasons” challenge, the Master’s detailed judgment made sufficiently clear to the Appellant why she had made the decision she did.[61]For these reasons I conclude that there is no real prospect of success under ground 1.

Ground 2: The interim payment on account of costs

[62]Under this ground the Appellant contends that the Master erred in making an order for an interim payment in several respects.[63]As noted at [18] above, CPR 44.2(8) requires the court to order an interim payment unless there is good reason not to do so. Whether or not there is such a good reason is a matter for the court’s discretion.[64]The Appellant relies on the serious nature of the Respondent’s misconduct and the fact that they had not made remediation to the witness whose statement had been used in breach of CPR 32.12(1). He submits that their actions, which amounted to a serious abuse of process and a contempt, were plainly a good reason for not ordering an interim payment.[65]He seeks support from Isbilen v Turk [2021] EWHC 854. However, Isbilen was a case involving allegations that someone had failed to comply with their obligations under a freezing order to give disclosure of their assets. Consideration was given to contempt proceedings. Ms Pat Treacy (sitting as a Judge in the Chancery Division) concluded that on the facts of that case, issuing a summons under CPR 81.6(3) would be inappropriate. It did not involve interim payments of costs. It therefore offers no real support to the Appellant’s argument.[66]The Appellant contends that the equitable “clean hands” principle and the need, on policy grounds, to protect the administration of justice required the Master to find that these were good reasons for not ordering an interim payment. To the extent that it was appropriate for the Master to take either of these matters into account, she had already done so when making the main costs order, by using the Respondent’s conduct as a reason for the 20% reduction, and in so doing noting that it had gone to the heart of the fairness of the proceedings and that some of it could have had implications for the wider administration of justice: see [38] above.[67]He argues that the serious and multiple nature of the Respondent’s adverse conduct was such that the outcome of detailed assessment was uncertain. Given these uncertainties the Master should have declined to order a payment on account of costs, as Freedman J did in Argus Media v Halim [2020] Costs LR 643 at [42]-[46] in respect of the applications before him. However, Argus Media generates no wider point of principle, especially because it is clear from earlier in the judgment that Fredman J did make an order for payment on account of costs in respect of the costs of the substantive claim: [33]-[41]. I agree with Sir Stephen Stewart that the misconduct issues in this case did not make the outcome of a detailed assessment so uncertain that the Master erred in ordering payment on account.[68]In any event, the Master expressly took into account the fact that the Respondent’s conduct led to a heightened level of uncertainty about the detailed assessment process. She did so by reducing the level of the payment on account of the costs of the claim from the starting point she had adopted of 90% of budgeted costs to 80%, after the application of the 20% sanction; and by only ordering a payment on account of 50% of non-budgeted costs, including the costs of the applications: see her reasons set out at p.4 of the 19 November 2024 order.[69]The Appellant referred to Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 at [25] (where an interim payment of 80% of costs was ordered) and MacInnes v Gross [2017] 4 WLR 49 at [26] (where a payment of 90% of budgeted costs was ordered). These cases do not illustrate any hard and fast rule as to what is a reasonable amount for an interim payment.[70]In reality this ground raises no arguable case that the Master erred in principle or exceeded the generous ambit within which reasonable disagreement is possible, per Islam (see [25] above). The Appellant merely disagrees with the Master’s decision that she should not “double penalise” the Respondent by refusing to order an interim payment, having taken the conduct issues into account in relation to the primary costs order. This was an approach that was well within her discretion.[71]Accordingly this ground is not arguable.

Ground 3: The costs of the applications

[72]The Appellant contends that the Master erred in deciding that he should pay 80% of the Respondent’s costs of the two applications before her. He argues that he had been substantially successful on his application: he had met the high threshold of securing the disapplication of the CPR 38.6 presumption and reduced his costs liability due to the Respondent’s serious misconduct. The Respondent had also substantially succeeded on their application. On that basis, the Master should have made no order for costs on the applications. Alternatively, the Master should have ordered costs in the case or reserved the issue to the Costs Judge for determination once the detailed assessment process had concluded.[73]Again, the decision as to what costs orders to make on the applications was a matter for the Master’s discretion; and she gave unusually detailed reasons to explain her decision.[74]The Appellant’s primary case across both applications was that he should pay none of the Respondent’s costs. The Master had ultimately ordered that he pay 80% of them. Although he had succeeded on his point of principle, in that the CPR 38.6 presumption was displaced, this was only to a very limited degree; and not nearly as much as the Appellant had sought. He had not, therefore, substantially succeeded: rather, the Respondent had.[75]In those circumstances, the Master was fully justified in ordering that the Appellant pay the Respondent’s costs of the applications, in the exercise of the general rule under CPR 44.2(2)(a) to the effect the unsuccessful party will be ordered to pay the costs of the successful party. In these circumstances there was no obvious basis for making no order for costs or ordering costs in the case.[76]The Master entirely understandably limited the Respondent’s costs recovery to 80%, to reflect precisely their percentage of success on their application.[77]These decisions were not arguably wrong.

Ground 4: CPR 52.6(1)(b)

[78]The Appellant contends that permission should be granted because there is “some other compelling reason” for the appeal to be heard under CPR 52.6 (1)(b).[79]He argues that the legal profession and public would benefit from a judgment giving guidance as to how costs decisions should be made in cases involving breaches of the CPR of the kind that occurred in this case which are not only very serious but very rare. He suggests that there is no known authority addressing the costs consequences of the collateral use of a witness statement; and only one addressing those consequences where there has been a failure to preserve evidence when on notice of the need to do so (Earles: see [50] above).[80]I disagree. The Court of Appeal gave clear guidance as to the application of CPR 38.6 in Brookes. Decisions as to how to apply that guidance in a particular case are inevitably fact-specific. They rely on judicial discretion. A High Court judge hearing this appeal could do no more than consider whether the Master’s approach to the misconduct issues found in this case involved an error of principle or exceeded the generous margins of that discretion. For the reasons given under grounds 1-3 above, I do not consider that the Appellant’s grounds of appeal in this respect have real prospects of success.[81]In all these circumstances there is no other compelling reason for the appeal to be heard under CPR 52.6(1)(b).

Ground 5: Alleged procedural irregularities

[82]The Appellant contends that the Master’s orders were unjust because of serious procedural irregularities in the proceedings under CPR 52.21(3)(b).

The factual background

[83]The Appellant argues that he had understood from exchanges with the Master during the hearings that the issue of what percentage reduction, if any, to make from the costs claimed would be addressed after her judgment on the issues of principle had been handed down. For example, on 14 March 2024, the Master had said that it was “probably best we do not go into amounts, because I am not going to be making a principled decision until we know what is happening, if you see what I mean, and then, given the outcome, we can hear argument over quantum.”[84]Having received the draft judgment on 19 September 2024, the Appellant emailed the Master contending that it would be procedurally unfair to proceed without a further hearing in relation to “amounts, quantum and percentage related matters” because he had not been able to address these issues in detail.[85]On 5 October 2024 the Master responded as follows:
“I do not accept that a party would think that I was intending to leave over the entire question of the consequences of the breaches (in respect of which I imposed a 20% reduction with quantum to be determined) but I do go along with Mr Elphicke as to the interim payment aspect (which is the ‘percentages’ reference in the transcript at 5F).”
[86]The Master explained that as she had, by this point, retired, for her to conduct another hearing could take months to arrange due to the need for her to be authorised to sit in retirement and other matters, such that she considered that the more efficient approach was for written submissions to be made on the issue of the level of the interim payment.[87]On 14 October 2024, the Master handed down the judgment. On 29 October 2024 the parties made their respective written submissions on the level of the interim payment. On 31 October 2024, the Respondent made some further written submissions. These were brief, consisting of three paragraphs, so far as concerned the issue of the level of the interim payment, and responded to new points the Appellant had made in his submissions. The Appellant contended that the further unsolicited submissions from the Respondent contained “claims of fact and submissions of law that are in error” and asked for time to respond, or for a further oral hearing.[88]On 6 November 2024, the Master replied as follows:
“Thank you, I shall consider the original sets of submissions. I will then view the supplemental submissions from D, and if I consider that they may alter my view formed without them, I shall invite you at that stage to send submissions in rebuttal. The process of evaluating an interim payment is intended to be straightforward and typically takes minutes at a hearing, and I have a duty to keep things proportionate.”
[89]On 15 November 2024 the Master emailed as follows:
“I did not find myself needing to apply the ‘supplemental’ submissions of D so as to affect my decision and therefore do not need to call on Mr Elphicke to rebut those.”

Submissions and analysis

[90]First, the Appellant contends that any reasonable person, would think, as he did, that he was being told not to address the percentage, amounts and quantum matters until it was known whether that would be necessary (ie after the “principled decision” whether to disapply CPR 38.6 and whether or not to make no order for costs) had been made.[91]He argues that it was procedurally unjust for the Master to have proceeded to give a judgment involving any issue of percentage reductions from the costs sought by the Respondent as he had not had the opportunity to advance detailed submissions on this issue, whereas the Respondent had done so. This created an unfairness that could not be cured.[92]However, in my judgment it is clear from the Master’s comments that she was only intending to defer matters of quantum, not matters of potential percentage deduction from costs, as a result of the Respondent’s conduct.[93]Moreover, at the 14 March 2024 hearing, once the Appellant had made detailed submissions to support his primary case that there should be no order as to costs or that the court should otherwise impose heavy sanctions, he did refer to the potential “discount approach” the court might make under CPR 44.2. The Master indicated that he should address what was effectively his “alternative” suggestion, inviting him to make any “suggestion in relation to a proportion approach” which he had. The Appellant then argued that the court should “reduce or extinguish the defendant’s costs by reason of the defendant’s repeated rule breaking” [my emphasis] before making submissions on percentage discount issues: see pp.47F-49A of the transcript.[94]Accordingly, the Master had explicitly indicated that if the Appellant wished to address percentage issues (in the alternative to his primary submission of no costs order) he should do so, and he did. The content of the Master’s 5 October 2024 email (see [84] above) was therefore entirely appropriate.[95]Second, the Appellant contends that it was procedurally unfair for the Master to have permitted the Respondent to make further unsolicited written submissions, while refusing him permission to reply: the Respondent had effectively had “another bite of the cherry” which was unfair.[96]This is unsustainable. The Master’s 6 November 2024 email made clear that she did not refuse the Appellant permission to reply to the Respondent’s further submissions: on the contrary she said that if the Respondent’s further submissions affected her view she would invite him to respond: [87] above. The Master’s 15 November 2024 email made clear that the Respondent’s further submissions had not affected her decision and it was therefore unnecessary for the Appellant to respond to them: [88].[97]Third, the Appellant argues that the Master should have listed a further oral hearing: the above process had placed the parties on an unequal footing and an oral hearing would have remedied that position.[98]I disagree.The hearing of the parties’ respective applications had already occupied three hearings of half a day each. The Master was fully entitled to consider that it would be consistent with the overriding objective for further submissions on the narrow question of the level of the interim payment to be made in writing rather than orally. I observe that decisions on costs issues, including on wider questions of principle rather than merely the level of an interim payment, are routinely made on the basis of written submissions only. If the Master had considered that the overriding objective required a further oral hearing, appropriate arrangements could have been made notwithstanding her retirement.[99]Further, as Sir Stephen Stewart’s order observed, none of the other grounds take issue with the amount of interim payment ordered. Accordingly, there is nothing to suggest that the alleged procedural shortcomings in the second and third points above would have made any difference to the overall outcome.[100]Accordingly, this ground is not arguable.

Conclusion

[101]For all these reasons, despite the Appellant’s comprehensive submissions, permission to appeal is refused.

Cited in 1 later judgment