Leonard Cook v Charlotte Skeggs [2026] EWHC 1132 (KB)

[2026] EWHC 1132 (KB)Case No KA-2025-000050
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2026
Before
THE HONOURABLE MR JUSTICE SWEETING
Between
Leonard COOKRespondent/ClaimantCharlotte SKEGGSAppellant/Defendant
David Peachey (instructed by Ashley Wilson Solicitors LLP) for Appellant/DefendantEdward Blakeney (instructed by Helix Law Ltd) for Respondent/ClaimantHearing Hearing dates: 31 st March 2026
Approved JudgmentThis judgment was handed down remotely at 11.30am on 12.05.2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]The Appellant appeals with the permission of Sir Stephen Stewart.[2]On 12 March 2025, HHJ Parker ordered the Appellant to pay 80% of the Respondent’s assessed costs of the Respondent’s strike out/summary judgment application issued on 1 May 2024. That application had been listed for hearing in May 2024 but was not determined until 2 January 2025. On that occasion the Respondent’s application was dismissed following amendments proposed on behalf of the Appellant at or shortly before the hearing.[3]The underlying proceedings concern the Respondent’s possession claim following his 2022 purchase of a property from the Appellant, who had sold the property to him for £250,000, through solicitors, having purchased it for £560,000 in 2017. The Respondent maintains that the transaction was voluntarily entered into. The Appellant, who says she is a vulnerable woman, alleges fraud and conspiracy, which the Respondent denies.

The Legal Framework

[4]The test on appeal is set out in CPR 52.21: 12 (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.”
[5]In Johnsey Estates v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 535, the Court of Appeal allowed an appeal against the original costs order. At [21], Chadwick LJ summarised the applicable principles:
“21. The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs – and, if so, what order – is a matter entrusted to the discretion of the trial judge; (iii) the starting point for the exercise of discretion is that costs should follow the event; nevertheless, (iv) the judge may make different orders for costs in relation to discrete issues – and, in particular, should consider doing so where a party has been successful on one issue but unsuccessful on another issue and, in that event, may make an order for costs against the party who has been generally successful in the litigation; and (v) the judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue; (vi) an appellate court should not interfere with the judge’s exercise of discretion merely because it takes the view that it would have exercised that discretion differently. 22. The last of those principles requires an appellate court to exercise a degree of self restraint. It must recognise the advantage which the trial judge enjoys as a result of his ‘feel’ for the case which he has tried. Indeed, as it seems to me, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge’s exercise of his discretion is flawed. That is to say, that he has erred in principle, taken into account matters which should have been left out account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse...”
[6]Whilst the appeal in that case was heard just before the introduction of the Civil Procedure Rules, the general principles set out hold good and it remains the position that appeals against costs involve a high threshold. In particular, an appellate court must not dissect or reinterpret extempore judgments with undue textual scrutiny (see Volpi v Volpi [2022] EWCA Civ 464); the Judge is presumed to have known and applied the correct principles in exercising their discretion unless the contrary is demonstrated (see Piglowska v Piglowski [1999] 1 WLR 1360 at [1372]).

Procedural Background

[7]Whilst the Respondent made a number of criticisms of the Appellant’s procedural conduct of the litigation, which were justified, his own application also fell short in some respects.[8]The Respondent had issued his application for strike out and summary judgment shortly before the first CCMC, which was listed for 9 April 2024. The application notice referred to the Respondents statement of case, as did the amended application notice, but did not identify the basis upon which either form of relief was sought and was unsupported by any evidence in support of the application for summary judgment.[9]By an order dated 9 May 2024, HHJ Brown recorded that the CCMC had to be adjourned because, as drafted, the strike out/summary judgment application did not comply with CPR 24.5(1) and had been issued too late to afford the Appellant the 14 days’ notice required by CPR 24.4(5). The Respondent was directed to amend the application.[10]The amended application notice remained expressed in generic terms. It again failed to articulate the grounds relied upon for strike out or to provide any evidential basis for summary judgment, asserting only that both applications should succeed “as a matter of fact and law”.[11]There then followed a period of procedural uncertainty arising from issues concerning capacity, which were addressed by HHJ Parker at a hearing on 25 October 2025. At that hearing, the court also accepted that the Appellant had insufficient material to understand the case advanced in support of the Respondent’s application. The Respondent was granted permission to serve further evidence in support of the application.[12]On 8 November 2024, the Respondent served a witness statement in support of the application. It stated:
“The crux of the SO/SJ Application, however, is that the Defendant has set out no proper basis for suggesting that a conspiracy existed to defraud her of the Property. 17. As a matter of law, the Defendant has not particularised in her Amended Defence and Part 20 Claim the type of conspiracy that is alleged (whether it is lawful means conspiracy or unlawful means conspiracy) nor how, whichever type of conspiracy is alleged, the elements of that conspiracy are established. The allegations fall to be struck out on that basis. 18. As a matter of fact, the Amended Defence does not sufficiently particularise the facts on which the Defendant relies to establish, or even give rise to the inference of, any conspiracy between the Claimant and JW.”
[13]The statement was substantially directed to disputing the factual merits of the defendant’s case (whichever form of conspiracy might be relied on) and was therefore concerned principally, although not exclusively, with the summary judgment limb of the application.[14]The Appellant served a re-amended Defence and Part 20 Claim on 6 December 2024. The revised pleading was not accompanied by any application notice which was subsequently filed late on 9 December 2024.[15]The re-amended defence was, the Respondent argued, still insufficient and internally inconsistent. By without prejudice save as to costs correspondence dated 16 December 2024, the Respondent’s solicitors made the following proposal:
“if by 4 pm on 18 December 2024 your client confirms the following, our client will consider consenting to the re-amended pleading and propose that the parties use the hearing listed on 2 January 2025 for costs and case management directions: 1. That she will serve a further re-amended defence and counterclaim limited only to the allegation of conspiracy by 4p.m on 31 December 2024; and 2. That the allegation of conspiracy will be properly particularised, such that our client can respond to the same without being required to make a Part 18 Request; and [A will pay R’s costs].”
[16]By that stage, the strike out/summary judgment application was listed to be heard on 2 January 2025, the Respondent’s solicitors having asked for the hearing to be brought forward from the date on which it was originally listed; 3 July 2025.[17]On 20 December 2025, the Respondent served two further witness statements dealing with the factual merits of the case, essentially denying that there had been any conspiracy. Skeleton arguments were exchanged on 31 December 2024, at which point it became apparent that the Appellant was abandoning the application issued on 9 December 2024 and advancing new proposed amendments to her case relating to the allegation of conspiracy (in the form of an annex to her counsel’s skeleton argument rather than the draft which had been requested by 31 December 2024).

Hearing of the Applications

[18]In his judgment at the 2 January hearing,

the Judge commented:

“5. Although the detail of the pleading is criticised, it is clear from the statement of case as a whole and from the witness evidence filed, that Ms Skeggs says: first, that she did not sign the transfer to Mr Cook; second, and this is pleaded, that she never discussed with him or agreed with him a sale price of £250,000; and third, that she alleges someone called Jacqueline Wilkinson was involved in the transaction and dealt with Ms Skeggs’ conveyancing solicitors by giving instructions to them. It is believed that Ms Wilkinson may now be deceased; certainly she has not been located. [...] 9. It is, on the face of it, very unusual for someone to sell a house worth over £500,000 for £250,000. It is highly unusual that Mr Thorpe should ever have signed a witness statements indicating that Mr Thorpe knew there was impersonation. Ms Skeggs denies signing the transfer document. Questions about whose signature it is on the TR1 are not generally appropriate for resolution at a summary judgment hearing. 10. There is another odd feature about the sale – one which I am not sure has even been touched upon in this hearing - which is that Mr Cook said in a recent witness statement that he had agreed with Ms Skeggs that if he resold the property for more than £400,000 she would get the surplus, limiting his profit to £150,000 minus expenses. There is no record of that agreement in the documented transaction. It appears to have been an oral agreement. It is, to say the least, unusual that no one mentioned it to the conveyancers or thought it should be written down. 11. There is also some informal support for Ms Skeggs’ assertion that she did not wish to sell the property at a knockdown price. That comes from a document in the hearing bundle for today which appears to be a letter issued by an estate agent, the Maison Partnership. This is admittedly not a formal witness statement, and its authenticity could perhaps be questioned, but it indicates that Ms Skeggs was seeking the full price for the property not long before the sale.”
[19]These features of the case, amongst others, led the Judge to conclude that there was at least a more than fanciful prospect of the Defendant establishing her case and that summary judgment was not appropriate. The underlying factual disputes are, of course, to be resolved at trial and are not directly relevant to the present costs appeal save in so far as they bear on whether there was ever any likelihood of the Respondent obtaining summary judgment.[20]As far as the strike out application was concerned the Judge appeared to be unpersuaded by a number of the submissions made as to deficiencies in the pleadings but in any event considered that the proposed amendments cured the defects asserted. Having considered the proposed amended paragraphs individually he observed:
“21. It seems to me that really the pleading does go as far as one could expect, given the alleged circumstances. This is a case, as Mr Peachey has submitted, where a defendant in Ms Skeggs’ position, if what she says is correct, could not be expected to know in any more detail what the inner workings were of the liaison between Mr Cook and Ms Wilkinson. But it is not an absurd assertion for her to make. Mr Cook was clearly the major beneficiary of what happened. Ms Wilkinson, on her case, was instrumental in making it happen. Whether the defendant says that Ms Wilkinson was caused by Mr Cook to act as she did, or whether she says that Ms Wilkinson agreed with Mr Cook to do so, does not seem to me a critical difference. 22. In view of the proposed re-amended pleading which alleges a conspiracy between Mr Cook and Ms Wilkinson, it does seem to me that there are sufficient pleaded facts, which, if proved, could justify an inference of dishonesty: specifically, the purchase at a significant undervalue and the knowledge, as pleaded at new paragraph 13.0, that Mr Cook knew Ms Wilkinson had impersonated Ms Skeggs in order to sell the property to Mr Cook, coupled with the fundamental allegation that Ms Skeggs never signed the transfer document and therefore somebody else must have done so. 23. I do not find it easy either to accept there is any significant gap in the pleading of a conspiracy. I think the worst that can be said about the pleading is that paragraph 13 does not in terms allege an agreement that the various things listed at 13 should be done. But that concern is at least substantially allayed by new proposed paragraph 21A, which says that sub paragraph A is a combination of agreement between the claimant and Ms Wilkinson, and that at sub-paragraph C, Ms Wilkinson unlawfully impersonated the defendant for (inaudible) or agreement. 24. Paragraph 21A does also refer to a Mr and Mrs Thorpe, Mr Thorpe being the same person whose witness statement I mentioned earlier. I think in that respect I should not give permission for re-amendment because the proposed re-amended defence simply does not set out any factual basis for saying that Mr and/or Mrs Thorpe were parties to any combination or agreement or conspiracy, so that allegation against them would obviously be liable to be struck out. I accept Mr Blakeney’s point that if the Thorpes are alleged to have entered into an agreement with the claimant he would be entitled to understand the case against him and to know in what way they allegedly did that, or what it is they allegedly did pursuant to that alleged agreement, and I do not think any of that can be seen from the pleading even after re amendment. 25. That is a very brief response to the lengthy submissions I have heard, but for those reasons it appears to me that I should permit re-amendment of the defence, as proposed by Mr Peachey, with the deletion of references at 21A and I think also 21B to Mr and/or Mrs Thorpe. On that basis I should refuse the application for summary judgment, and there is nothing to be struck out. 26. I accept Mr Blakeney’s point that what we are then left with is a pleading which is not as easy to follow as it could be, but I do think it is sufficiently intelligible for it to stand.”
[21]The pertinent observation to be made for present purposes is that both the summary judgment application and the strikeout application were argued before the Judge although the focus appears to have shifted to the latter with accompanying argument about whether the amendment should be allowed. The Judge did not in fact allow all of the proposed amendments, rejecting two of the references to other individuals at amended paragraphs 21A and 21B.

Costs

The Judge introduced his short judgment on 2 January 2025 with the observation:

“2. There is an application by the claimant for strike out and/or summary judgment against the defendant and an application made informally yesterday by Mr Peachey to re-amend the defence. For reasons I have already given, I am taking into account those proposed re-amendments when I am considering the strikeout application. It may eventually be necessary to look more closely at how far, if they do, it is Mr Peachey’s suggested re-amendments that save the day for the defendant in resisting summary judgment, because that may have an impact on what would be the appropriate costs order. However, given that it is now past 1 o’clock, and bearing in mind I have an entirely full list at 2 o’clock, I doubt whether we will get to costs today.”
[23]As the Judge had anticipated the issue of costs was adjourned to a further hearing which took place on 12 March 2025. At that hearing, the Judge considered five categories of costs, of which only the costs of the strike‑out/summary judgment application are the subject of this appeal. The Respondent draws attention to the Judge’s findings: i) that the application was substantially justified when issued; that the Appellant’s late amendment on 2 January 2025 “completely changed the picture”; ii) that a reduction was nevertheless appropriate and that the Appellant’s conduct had necessitated the later additional hearing.[24]The Respondent submits that these findings were open to the Judge, that the costs orders were orthodox and are not susceptible to challenge.[25]The Respondent’s skeleton argument for the 12 March 2025 hearing had summarised his core submissions as follows:
“...on 16 December 2024 the Claimant made a WPSATC offer to the Defendant in an attempt to avoid the time and expense that would be incurred if the 2 January 2025 hearing went ahead. That offer was to have the Defendant file a new (properly particularised) Re-Amended Defence and Amended Part 20 Claim, which focused solely on conspiracy rather than the new causes of action introduced in the Amendment Application, and to pay the Claimant’s costs. 17. The substantive part of that offer i.e. that which related to a repleaded case is precisely what resulted from the Further Amendment Application and the decision of the Judge. The costs of that hearing could have been avoided had the Defendant accepted that offer, yet she did not and did not engage with the Claimant/ his solicitors. 18. Accordingly, the Defendant should pay the costs of the SO/SJ Application. 19. No doubt the Defendant will contend otherwise, presumably on the basis that the SO/SJ Application was dismissed and/or that it was a bad application to make in the first place. However, if that position is taken by the Defendant, it overlooks the points made above; the SO/SJ Application was an appropriate application at the time it was made, and the Defendant’s case always had to be amended, but it was the last minute Further Amendment Application that addressed both those points.”
[26]In relation to the costs of the consequential hearing (since costs had not been reached on 2 January 2025) the Respondent submitted:
“The Court will recall that more than an hour of the original 3-hour time estimate was taken up dealing with the permissibility of the Further Amendment Application given its lateness and its effect on the SO/SJ Application. That meant that there was insufficient time following Judgment to deal with the matters that now require a separate hearing to determine. It is therefore as a direct result of the Further Amendment Application that these additional costs have had to be incurred.”
[27]The Judge accepted this submission awarding the Respondent his costs of the 12 March 2025 hearing which he then summarily assessed at £5,980.44.[28]As far as the costs of the strikeout/summary judgment application was concerned, in his judgment of 12 March 2025

the Judge observed that:

“The starting point suggests that the claimant should not have his costs. He nevertheless seeks those costs, essentially on the basis that if it had not been for what has been called the further amendment application, the claimant’s application would have succeeded and that, given that the further amendment application was effectively only made at the hearing, it should not change the picture as to costs. It seems to me that that is a good point as far as it goes, and that the application made in May 2024 was substantially justified at the time when it was made.”
[29]As the Appellant submitted in argument this could only logically have been a reference to the strikeout application rather than the summary judgment application, because the Judge went on to find that summary judgment would not have been justified, irrespective of the amendments:
“Then there is a further point that this was a double application seeking both strike out and summary judgment and here, I think Mr Peachey’s criticisms are well founded. The summary judgement aspect of the application, although closely linked to the strike out, was a distinctly different part of it and is an application which failed before me by quite a large margin, as can be seen from my, judgment of 2 January. It would have failed, I think, even if it had been considered before Mr Peachey’s amendments were proposed because, when it came to assessing the evidence and considering the real prospect of success test, I do not think the claimant got close to showing that the defendant’s factual case was merely fanciful.”
[30]The amendments themselves did not therefore “save the day for the defendant in resisting summary judgment” as the Judge had posed the question rhetorically at the conclusion of the 2 January 2025 hearing.[31]The Judge’s overarching conclusion as to the part played by the summary judgment application at the hearing was:
“My overall assessment is that the summary judgment aspect did take some time for the claimant to put forward, not least in part of Ms Alban’s November 2024 witness statement, and in being responded to at the hearing by Mr Peachey, although, as I noted in my judgment, it did not receive the majority of attention.”
[32]Whilst that may have been true of the allocation of time and argument at the hearing it was not, as the Appellant argued, necessarily true of the costs which had been incurred prior to the hearing, as the procedural chronology indicates.[33]The Respondent’s costs schedule for the half‑day application totalled approximately £123,000, a figure which the Judge described, not surprisingly, as “fairly stunning”. In deciding not to embark on summary assessment, as would have been the usual course, he commented:
“I think my order ought to record that among the factors I took into account were lack of time for a summary assessment given factor 2, that I was told the costs were around £123,000 and should record factor 3 that I commented that on the face of it, that that was a surprisingly high figure.”
[34]In his conclusion as to costs

the Judge said:

“So, overall, it seems to me, because the picture had completely changed at the hearing when Mr Peachey made his application for the further amendments, it is right to award a substantial part of the costs of the application to the claimant. Having weighed up the factors as best I can and bearing in mind that it is much easier to work out figures if one uses a percentage, what I propose to say is that the claimant should have 80 percent of his costs of the application.”
[35]The Appellant argued that on the Judge’s own findings the picture had only changed in relation to the strikeout application which was addressed by the amendments. The Appellant submits that the Judge failed to distinguish properly between the two discrete elements of the Respondent’s application; strike out and summary judgment. The summary judgment application had failed entirely, and as the Judge indicated during the hearing it had failed “by quite a large margin”. The Appellant argued that the Judge did not give effect to that finding when determining costs. She also contends that the strike‑out was narrow in scope, concerning the legal categorisation of the alleged conspiracy, and did not justify a substantial award in the Respondent’s favour. That contention is, it is argued, reinforced by the Judge’s characterisation of the strike out issue as substantially depending on the legal analysis of the pleadings, such that it could be cured by amendment.[36]Whilst the Respondent had made a without prejudice offer, this was no more than an offer to consider consenting to amendment and avoiding the hearing if he was informed of the amendments by 31 December 2024, which it was. It would also be fair to add that the Respondent also sought the Appellant’s agreement to pay its costs of and caused by the re-amendment including its costs in the applications. The Respondent nevertheless argued both applications substantively, as is clear from the judgment, and does not appear to have consented to the amendments. As

the Judge observed:

“22. There are other points that can be made against the claimant. First, that some of the attacks made in the strike out application failed. There were attacks on some paragraphs in the defence which I was not persuaded to strike out on 2 January - although it is fair to qualify that, as Mr Blakeney does, by pointing out that there might have been a different result if it had not been for Mr Peachey’s last minute application. It is difficult to analyse this argument in the time I now have available, but I accept that there might have been a different result if the additional paragraphs drafted by Mr Peachey had not been allowed in, because some of the other paragraphs which have remained in the reamended defence can only stand up to scrutiny if they are linked to the new explanatory paragraphs as to conspiracy particularly 21(a), 21(b) and 21(c) of the latest version of the pleading.”
[37]While this is perhaps the high point of consideration of the impact of amendment the Appellant submitted that in reality it does not stand up to an analysis of the sort which the Judge said there was insufficient time to conduct. In a counterfactual situation in which there were no amendments it was inherently improbable that the Judge would have struck out a claim that had the required prospect of success, where the technical point taken on the pleadings could be remedied by amendment and any other deficiencies by particularisation.[38]In addition, because the amendments were sought outside of the timetable set by the court there were submissions by the Respondent about whether amendment was permissible. These were referred to in the judgment but ultimately were not identified by

the Judge as an impediment to permitting amendments to be made:

“25. There are some other factors which I may not yet have mentioned or perhaps should emphasise again. The further amendment application was not merely made extremely late. It was also made at a time when it was in breach of the deadline which I had set in my October 2024 order. Because of that, as Mr Blakeney has pointed out, the hearing on 2 January took even longer than might have been expected, as that failure lead to a good deal of discussion about the consequence of missing that deadline, the application of the doctrine of implied sanctions, and a fairly recent judgment of, if I recall correctly, Birss LJ in a case called Yesss.”
[39]The Appellant further submits that, when determining costs in principle, the Judge declined to consider the quantum of costs, on the basis that it was irrelevant. After delivering his judgment, however, he expressed surprise at the level of the Respondent’s costs and stated that he might have underestimated the resources spent on the summary judgment aspect. The Appellant relies on these exchanges as indicating that the Judge’s order did not reflect relative success and failure on the two parts of the application.[40]In relation to a payment on account of costs he observed:
“The real problem is the amount, because I am faced with a statement of costs of £123,464.60 worked out on the basis of very substantial amounts of time spent on almost all aspects of the matter when ultimately, what the court has been dealing with is an application for strike out and summary judgment which substantially depended on legal analysis of the statements of case. I am told but I have not seen it that the defendant’s statement of cost is £22,000, and that is on 100 percent basis. My costs award was 80% of the costs so checking my maths, that would have translated to £17,600. Because I am so completely baffled by the figures I am confronted with, I do not see I can sensibly arrive at any estimated reasonable sum on account by reliance on what said in the N260. I accept it is possible that ultimately, those figures may be justified and it is claimed, although I have not seen the material to support it, that the claimant’s legal team has been subjected to serious and time consuming allegations by the defendant’s solicitor but I do not see I can very much take that into account when I have not seen the correspondence or understood how it was responded to. So looking at the matter from the other way round, I have asked myself what I would actually have expected an application like this to have cost, given the nature of the application, the evidence filed, and the number of hearings it has involved. That gets me to a figure far closer to what is suggested by the defendant’s figure of somewhere around £20 to £25,000 on a 100 percent basis. I then have to make an award for payment on account which I am reasonably confident will not be more than the amount that is ultimately recovered So I have to make a further reduction in relation to that.”
[41]The Appellant initially contended that the Judge should have considered an issues‑based costs order, or alternatively made no order for costs, instead of applying a single percentage reduction. She submitted that the percentage selected lacked a clear rationale and did not properly reflect the fact that the Respondent had been unsuccessful on the more substantial, and costly, summary judgment element. She also argues that the Judge gave undue weight to the perceived difficulty of disentangling costs between issues, which she says was not a proper basis to decline an issues-based order.[42]The Appellant submitted that the correct order should have been an issues‑based costs order, namely, that she recover her costs of the summary judgment issue and the Respondent recover his costs of the strike‑out issue or alternatively that there be no order for costs. The Appellant now says, in circumstances I shall explain, that if the Respondent is entitled to any costs, dependent upon the outcome of this appeal, then the Respondent’s cost of the application should be summarily assessed at nil or disallowed.[43]In response to the Appellant’s criticism that the Judge failed to distinguish sufficiently between the strike‑out and summary judgment elements of the application, the Respondent submits that the Appellant’s approach draws an artificial and inaccurate distinction. He maintains that the two applications were closely intertwined both legally and evidentially, and that the Judge expressly acknowledged and weighed the extent of the parties’ relative success in awarding costs to the Respondent and determining that there should be a 20% reduction. He argues that the Appellant’s contention that the summary judgment element “failed entirely” mischaracterises the Judge’s reasoning.[44]The Respondent further submits that the Appellant did not seek an issues‑based costs order before the Judge. Her counsel’s references to an “offset” during the discussion on payment on account were equivocal and came after the Judge had already delivered his decision in principle. The Respondent argues that the Judge cannot be criticised for failing to consider the detailed principles governing such orders when those principles were not put before him. He also emphasises the practical difficulties and expense associated with issues‑based orders, particularly where, as here, the strike‑out and summary judgment elements overlapped.[45]The Respondent rejects the Appellant’s reliance on the scale of the costs claimed, noting that the Judge correctly stated that the quantum of costs was not relevant to the question of who should pay and in what proportion.[46]Thus, the Respondent invites the Court to dismiss the appeal in its entirety, lift the stay imposed when permission was granted, and award him the costs of the appeal.[47]The appeal was listed before me on 31 March 2026.[48]In advance of that hearing, Mr Anthony Ashley Wilson, a solicitor with conduct of the proceedings on behalf of the Appellant, provided a witness statement dated 27 March 2026 in support of an application to amend the appeal notice and grounds of appeal. The amendments sought relate to: i) the absence of what he describes as a meaningful N260 before the Judge at the hearing on 12 March 2025, and ii) matters said to concern the conduct of the Respondent or his legal representatives.[49]The amendment application arises from information which Mr Wilson states was first seen when the Respondent’s skeleton argument for the appeal was served after 4 pm on 25 March 2026. Attached to that skeleton argument was a document described as a “Costs Breakdown”. Mr Wilson says he was not previously aware of this document, and that its contents materially differ from the position advanced before the Judge in March 2025.[50]Mr Wilson explains that, shortly before the original hearing on 2 January 2025, the Respondent’s solicitors served two N260 statements of costs.[51]He exhibits emails passing between the parties’ respective counsel on 1 January 2025which include the following from the Respondent’s counsel:
“I’ve attached the two N260s my sols have prepared (these were sent to your solicitor on Monday). One is for the costs incurred in the claim, and one is for the costs incurred in relation to the application.”
[52]One of those statements put the costs of the strike‑out/summary judgment application at £123,464.60 and the other gives an overall figure of £171,269.64.[53]Mr Wilson recounts the sequence of events at the hearing on 12 March 2025, including exchanges between counsel and the Judge, in which the Judge appeared to understand that the Respondent was seeking the full sum of £123,464.60 as the costs of the application. Mr Wilson states that he did not recall any explanation at the hearing to the effect that the figure included costs incurred in the wider litigation.[54]The Appellant submits that the Respondent’s presentation of the £123,000 figure led the Judge to misunderstand the scale of costs attributable to the application and contributed to the decision to order detailed rather than summary assessment. She maintains that the Judge relied on repeated assurances by the Respondent’s counsel that the costs claimed related to the application, and she identifies passages in the transcript in which the Judge expressed concern at the size of the claimed costs. The Appellant argues that the Judge’s subsequent remarks suggest that he may have underestimated how the costs were in fact allocated between the summary judgment and strike‑out elements[55]The transcript of the hearing in relation to summary assessment includes the following exchange between

the Judge and the Respondent’s counsel:

“MR BLAKENEY: Well, so that is the point, the first point I am going to address because the claimant’s costs of the various applications, the strike out summary judgment and the amendment application come to, let me just get it right, £123,000. JUDGE PARKER: All right. Well, that does strike me as an extraordinary figure. MR BLAKENEY: And I accept it is a very high figure, but I would make submissions that there are very good reasons for the figure, bearing in mind the conduct of the defendant but I appreciate that that sum is quite a lot to deal with by way of summary assessment.”
[56]Later, in relation to a payment on account, the Respondent’s counsel submitted:
“In respect of the suggestion of £10,000 as payment on account, in my opinion, that is unrealistically low. If one were to consider what I asked for which is 40 percent, that would be about £40, £45,000. Even if the court considers that it is too high and needs to be reduced, then a £10,000 payment on account is - it barely covers counsel’s fees which are largely in line with the defendant’s counsel’s fees and therefore, it would be very, very difficult in my submission to reduce on assessment. So, it certainly should be nowhere near as low as £10,000 but in my opinion, 40 percent would still allow a good appreciation, a good margin of appreciation to prevail and what happens in any assessment process.”
[57]The newly‑seen Costs Breakdown, which accompanies the Respondent’s skeleton argument for the appeal, gives a total (after deducting draftsman’s fees and applying the 20% deduction in HHJ Parker’s order) of £29,254.56 for the costs of the application which is very much closer to the figure on the Appellant’s costs schedule, and, as Mr Wilson notes, substantially lower than the figure of £123,464.60 referred to previously. He sets out the consequences which he says have followed from the use of the earlier, higher figure, including its effect on the approach taken to assessment of costs, the decision to bring an appeal, the scope for settlement discussions, and the steps taken in preparation for the appeal hearing.[58]The Respondent’s skeleton for the appeal made brief reference to the new Costs Breakdown in these terms:
“Accompanying this skeleton argument is a costs schedule relating to just those costs of the SO/SJ Application, which neutralises points seeking to link the appropriateness (or otherwise) of percentage-based costs orders with headline figures.”
[59]At the hearing I was told that a costs draftsman had been requested to prepare the revised schedule in June 2025 though I was not told when it had in fact been produced. It is not contained in an N260 form and has not been verified by the Respondent’s solicitor. Its status is therefore uncertain and the submissions before me were to the effect that the Respondent was entitled to put its costs of and occasioned by the applications as being over £123,000. The Respondent has not therefore resiled from the position as set out before the Judge. The only verified cost schedule remains in a 6-figure sum.[60]Mr Wilson also describes aspects of previous case management, including the bringing forward of the hearing date to 2 January 2025 following a request made by the Respondent’s solicitor, and the circumstances in which the Appellant became aware of that change.[61]He asserts that the Respondent’s legal representatives were aware of the Appellant’s limited financial means, her reliance on a “Sears Tooth” funding agreement, and issues regarding vulnerability and legal representation.[62]The Appellant seeks to amend her grounds of appeal to include reliance on CPR 44.11, which concerns unreasonable or improper conduct in relation to costs. CPR 44.11 states as follows: “44.11.— Court’s powers in relation to misconduct(1) The court may make an order under this rule where— (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.(2) Where paragraph (1) applies, the court may— (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur. CPR 44.11 states as follows: (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper. (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.[63]The Appellant contends that the Respondent’s failure to provide an accurate costs figure until shortly before the appeal hearing may fall within the circumstances covered by this provision in the rules. She also seeks leave to adduce Mr Wilson’s statement as new evidence under CPR 52.21(2), submitting that the statement dealing with the revised costs information meets the criteria for fresh evidence because it could not have been obtained earlier, is apparently credible, and would have influenced the court’s decision.[64]I concluded that the Appellant should be permitted: i) to rely on the evidence contained in and exhibited to the witness statement of Mr Wilson in support of the appeal and ii) to amend her grounds.[65]The Appellant’s underlying case remains that the Judge’s costs order did not, at the very least, properly reflect the outcome of the two distinct parts of the Respondent’s application because the summary judgment element failed entirely, as did the strike out application which concerned a narrow point of pleading.[66]The Appellant submits that the Respondent’s decision to leave its further revelation as to the costs attributable to the application to the 11th-hour had the potential to severely skew settlement discussions and possibly the outcome of the whole proceedings. The high costs sought were clearly relevant to a decision as to whether or not to appeal and the Appellant was deprived of relevant information. Irrespective of the outcome of the appeal the Respondent, it is argued, should pay the Appellant’s costs of the appeal on the indemnity basis.

Discussion

[67]As the Judge acknowledged, the starting position was that the Appellant was the successful party having resisted both the strike out on pleading points and summary judgment on the merits of the defence. The Appellant sought her costs conceding that she should nevertheless pay the Respondent’s costs of the amendment.[68]I do not consider that it was possible in the circumstances of this case to regard the summary judgment application as merely ancillary to the strikeout or as representing just another way of articulating the same shortcomings in the Appellant’s case. In some cases that might be the correct analysis, but it was not the position here. The Judge plainly did not think so, reaching an express finding that the summary judgment application would have failed irrespective of the pleading point.[69]It is clear on the material before me that the summary judgment application was advanced on the basis of an assertion that there was no merit in the defence, supported by evidence dealing with the underlying factual matrix, and an invitation to the court to conclude that a conspiracy could not be made out, not simply that the particular species of conspiracy had not been properly identified or was insufficiently particularised.[70]There was plainly a risk, if not a probability, that a substantial amount of work had been carried out in relation to summary judgment rather than the more narrowly defined pleading issue. That became all the more apparent once the cost schedule had been produced. The Respondent could simply have taken the points which were advanced in relation to the identification of the tort alleged, but he chose to advance a summary judgment application. It is inconceivable that the strike out alone could have generated anything like the costs which were claimed.[71]Although I was referred to a number of authorities in relation to the approach to be taken where there were mixed outcomes, and where the possibility of an issues based cost order was not considered, none of them involved a scenario in which the party that had won was not only being deprived of their costs but required to pay the other party’s costs.[72]It was not difficult to decide who was the overall winner in the present case; there was no issue on which the Appellant had lost. The Appellant had plainly succeeded in resisting the applications. The initial question was whether there was any basis on which to deprive her of her costs or, unusually, whether the circumstances were such that she should be required to pay the unsuccessful party’s costs. As the guidance from the Court of Appeal makes clear (see Johnsey Estates):
“The judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue.”
[73]The Judge did not deprive the Appellant of her costs; he went further and ordered her to pay the Respondent’s costs.[74]If there was to be a departure from the general rule, that the Appellant was entitled to her costs as the successful party, then that could only have been justified in relation to the issue on which the late amendment was central. That might be tested by asking what the appropriate costs order would have been had the amendments been dealt with in a separate and timely prior application. The usual order would have been that the Respondent was entitled to his costs occasioned by the amendment. As it was, the strike out and summary judgment application had been brought forward on the application of the Respondent.[75]The Appellant’s counsel plainly did raise the prospect of an issues-based cost order. That can only have been the meaning of the reference to an “offset” during submissions albeit that this occurred when the Appellant’s counsel asked the Judge to alter the original costs decision in the light of the costs schedule, referring back to his “initial” submissions.[76]It is clear that the amount of costs claimed was the determining factor which led the Judge not to embark on a summary assessment but to make an order for detailed assessment. The submissions made as to the appropriate payment on account of costs are only explicable on the basis that the costs of the application were in the order of £123,000. Mr Blakeney said that the figure could be justified on the basis that the Respondent was entitled to its costs of and occasioned by the applications and that the costs which could be regarded as occasioned by the strikeout and summary judgment applications were considerable. I had some difficulty in following this line of argument all the more so since it appears that the Respondent’s solicitors had instructed a costs draftsman to prepare a cost schedule isolating costs attributable to the applications.[77]The status of the revised schedule submitted with counsel’s skeleton argument for the appeal is opaque. It appears to have been advanced for a tactical purpose shortly before the appeal hearing. It does not seem to me to be appropriate, or possible, to make any findings in relation to conduct on the material before me. There is only one verified costs schedule in relation to the summary judgment and strike out application. The Respondent will have to explain a departure from that costs schedule if he asserts in future that the information given to the Judge was inaccurate.[78]I have sympathy for the Judge given the circumstances in which he had to decide issues of costs. He did not receive the Appellant’s skeleton prior to the hearing and does not appear, initially, to have had the N260. The matter overran so that he had to see whether the court could sit beyond 4:30pm. He candidly accepted that he did not entirely recollect the basis of his earlier order and had to deal with costs at a hearing separate from the hearing to which they related. It appears he may not have received the assistance that he should have done in relation to the nature of the costs which were being claimed. He did not have the benefit, as I did, of a full day of argument, also going beyond the end of the usual court day.[79]Whilst it is generally necessary to defer to a first instance judge in matters involving the exercise of discretion and an evaluative judgement, that latitude extends to decision making within a framework of principle. There is an obvious requirement for cost regimes to be predictable in order to allow informed decisions to be made, and advice given, about the merits and consequences of steps taken in litigation. The touchstone for deciding the incidence of costs is an assessment of which party has won on the matter or issue being decided. As Freedman J observed in Matrix Receivables v Must Holdings Limited [2024] EWHC 2167 (Ch) at [27]:
“Further, it is important to identify the reasoning why the usual order on a summary judgment or strike out application is that the unsuccessful party should pay the costs. That is in part because of the regime within CPR 44.2(2). It is also because of a symmetry. In the event that the applicant is successful, the action comes to an end and the applicant generally recovers the costs of the action. So likewise, if the strategy does not pay off and the applicant loses, the applicant stands to bear the costs. It is a disincentive to interlocutory applications to know that this starting point exists and operates in practice. If it becomes watered down, then the impact of deterring or inhibiting interlocutory applications is reduced.”
[80]Although the judge concluded that the application was justified when it was made it is clear from the procedural chronology that it was not properly formulated. In any event the question of whether it should have been pressed to a hearing required to be considered in the light of the responses after the application had been issued. This was the Respondent’s application which the Appellant (the Defendant to the claim) had no choice but to resist. The Judge’s conclusions in relation to summary judgment were unequivocal. As far as striking out the defence and Part 20 claim was concerned, the proposed amendments, although late, had been received by the Respondent prior to the hearing and by the date upon which he had indicated he wished to consider them. Again, the Judge’s conclusions on the substance of the amendment application were, with minor exceptions, entirely one way; in essence that, as amended, the Appellant could be not expected to say more than she had and that her case was adequately pleaded. As far as procedural irregularities were concerned the position as between the parties appears to have been balanced albeit that their respective failures came at different stages.[81]Having succeeded in defending the applications, the Appellant was then faced with a submission that she should pay all of the costs; the same application as would no doubt have been made if she had lost entirely. Nothing emerged at the hearing that was not already known. The Judge’s conclusion that “the picture had completely changed at the hearing” does not in my view stand up to analysis and is difficult, at the very least, to reconcile with his findings in relation to summary judgment. I find it difficult to see how the predictable legal result could have been that Respondent could embark upon the hearing on the basis that he would receive his costs irrespective of the outcome. The fact that those costs were said to amount, at that stage, to over two thirds of all of the Respondent’s litigation costs underlines the incongruous nature of the order made, notwithstanding the reduction of 20%. That reduction reflects the Judge’s conclusion that “it is right to award a substantial part of the costs of the application to the claimant” but is otherwise unexplained. It appears to have been applied to identify a “substantial” part rather than by reference to any issue which merited a reduction.[82]There would, in my view, have to be a significant reason, grounded in the Appellant’s conduct, for reversing the usual order as to the incidence of costs on interlocutory applications. I conclude that the Appellant is correct to submit that the decision is “wrong” because it does not properly reflect the outcome of the hearing and the relative success of the parties on the application.[83]In Johnsey Estates, Chadwick LJ commented on the approach on appeal where an error of this type had been identified:
“[29] It follows, in my view, that the judge’s approach was flawed. He ought to have recognised that, in relation to costs incurred before 19 February 1999, the landlord was the successful party; and that, accordingly, the starting point from which to approach the exercise of discretion in which he was engaged was that the landlord should have its costs down to that date. I accept, of course, that a party who has been successful overall may, nevertheless, be deprived of his costs – and may be ordered to pay the costs of the other party – in respect of issues which he has fought unsuccessfully. But an exercise of discretion on that basis cannot lead, in the present case, to an order that the claimant pay the defendant’s costs of the diminution in value issue in respect of any period prior to 11 February 1999 (the date of the exchange of revised expert’s reports); nor to an order that the claimant should be deprived of its costs of that issue prior to that date. That is because it cannot be said that the claimant failed to establish what, as matters stood prior to 11 February 1999, it had to establish in order to succeed on that issue – namely, that the diminution in the value of the reversion as at 24 June 1994 was greater than the equivalent value, as at that date, of the payment in. Nor can an exercise of discretion on that basis lead to an order that the claimant be deprived of its costs of all the common law claims in respect of any part of the period between 26 September 1996 and 15 October 1998. That is because it cannot be said that the claimant failed to establish what, as matters stood prior to 15 October 1998 (when the point was formally admitted), it had to establish in order to recover damages equal to the diminution in the value of the reversion – namely, that the cost of actually making good the disrepair was at least equal to the amount by which the value of the reversion was diminished (measured by reference to the reduced rent). [30] It follows that I would hold that it is for this Court to exercise the discretion as to costs which, for the reasons which I have sought to give, I am satisfied the judge failed to exercise in a manner which the law permits.”
[84]It follows that the correct approach is not to seek to recast the Judge’s order but to exercise the discretion afresh. The Appellant was entitled to her costs as the successful party. There is no reason to disturb the Judge’s finding that the summary judgment application could be regarded as distinct from the strikeout application in the circumstances of this case and would not have succeeded. The Appellant had therefore demonstrated that she had a sufficient prospect of success. That alone militated against depriving her of her costs. She had succeeded on a “distinctly different” part of the application which would have failed even prior to amendment. She was also the winning party in relation to the strikeout but here she was to be criticised for making a late amendment application, which cut across the court’s earlier order and case management directions requiring any amendments to be filed and served by 6 December 2024. Whilst it is true that the Respondent only had to win on one or other of strike out or summary judgment it was nevertheless always apparent that any deficiencies in the pleading could be cured by amendment. That no doubt underpinned the Respondent’s offer to consider draft amendments. The Judge went no further than saying that there “might” have been a different result on the strike out absent the amendments. There are practical difficulties in making a costs order on an issues basis such that “in many cases the judge can and should reflect on the relative success of the parties on different issues by making a proportionate costs order” (see Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2009] 1 Costs LR 155 at [72]). Those difficulties are multiplied where, as here, the question is whether the winning party on the issue ought to be deprived of costs. I cannot in the circumstances see a proper basis on which to make different orders by reference to issues.[85]CPR r 44.2(2) provides that the general rule is that the unsuccessful party will be ordered to pay the costs of successful party, but the court may make a different order. In deciding what order to make the Court will have regard to all the circumstances including the conduct of the parties. The relevant conduct in this case is the application for amendment made at the hearing which, while necessary, should have been made earlier in a proper form in accordance with the court’s directions. The appropriate way to reflect that conduct is to deprive the Appellant of part of her costs bearing in mind that the material conduct relates only to the strike out application.[86]I consider the appropriate order is that the Respondent should pay the Appellant’s costs of the contested strikeout and summary judgment application on the standard basis, subject to a reduction of 25%.[87]The Appellant has therefore succeeded in the appeal, and the Respondent should also pay the Appellant’s costs of the appeal. The Appellant submitted cost schedules in respect of both hearings. I therefore propose to summarily assess the costs claimed. I will give the parties some additional time to make written submissions in relation to those costs as there was no time to consider costs prospectively at the appeal hearing. I note that the Appellant’s cost schedules appear to show that all work was done at Grade A rates, which will require an explanation. END

Cited in 1 later judgment