Kerry Underwood

PERMISSION TO APPEAL REFUSED WHERE ACADEMIC SAVE AS TO PREVIOUS COSTS ORDERS

with 2 comments


In Christodoulides v Marcou [2017] EWHC 2691 (Ch)

the High Court has refused permission to appeal a decision where the appeal was limited to an academic question and the only possible effect of the outcome of the appeal was in relation to previous costs orders.

The appellant brought proceedings against her sister, seeking to set aside a transfer by their mother to the appellant of the mother’s share in a property.

The parties accepted that the ultimate position as to the beneficial interests in the property would not be affected by the proceedings, because the mother’s Will had been held to be invalid in separate proceedings, and therefore the 50% share would be transferred to the parties in equal shares, either under the transfer or on due administration of the estate.

In refusing permission to appeal the first instance decision that the transfer was valid, the court set out the following principles:

  • the fact that an appellant’s success on an issue raised on appeal (which, on its own, has become academic) could lead to previous costs orders being revisited, may persuade the court that the appeal, as a whole, is not academic;

 

  • in such cases, the court must consider how certain it is that the success of the appeal will improve the appellant’s previous position on costs. The more uncertainty there is, the less likely it is that the court will entertain the appeal;

 

  • where the only possible effect of the outcome is in relation to previous costs orders, the court will be very cautious before allowing the appeal to proceed.

On the facts, taking into account the possible outcomes of the appeal and the different ways in which it might be dismissed, the court concluded that the appeal did not have a real prospect of success.

In addition, given that the only possible effect of a successful appeal was in relation to the previous costs orders, and in view of the caution to be exercised in such cases, the court held that it was not a case in which permission should be granted.

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Written by kerryunderwood

December 12, 2017 at 9:46 am

Posted in Uncategorized

2 Responses

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  1. Hi Kerry

    I just wondered whether the model funding agreements in your £80 book were still up to date.

    Many thanks

    David

    Sent from my iPhone

    David Shaw

    December 12, 2017 at 7:36 pm

  2. Yes

    kerryunderwood

    December 12, 2017 at 7:41 pm


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