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MacKay & Ors v Ashwood Enterprises Ltd & Ors [2013] EWCA Civ 959 - 31/07/13


Appeal against an order requiring the defendants to pay the costs of a without notice application and a subsequent order refusing to set aside the earlier order on the grounds, inter alia: it was outside the court's jursidiction, or alternatively an improper exercise of the court's discretion, for a final costs order to be made without notice and without the opportunity to make subsmissions; and, the judge erred in holding that the right to apply to have the order set aside or varied could be lost by delay.

Appeal dismissed. Held: The court's power to make orders as to costs is conferred in fully general terms and extends to orders made on a without notice application (s. 51, Senior Courts Act 1981; CPR 44.10(2)(c)). Such an order is exceptional and only very rarely appropriate. Delay is relevant to the discretionary exercise, justifying an express time limit to the general liberty to apply.

Obiter, a costs assessment may only be challenged by way of an appeal but it does not follow that the same applies to an order made without notice. The party against whom such an order is made has a right, conferred by and confined to CPR 23.10, to apply and have the merits of the order reconsidered at first instance as well as (subject to obtaining permission) to an appeal (Bank of Scotland v Pereira [2011] EWCA Civ 241 anologous).

In the present case, it was not inconsistent with the court's general discretion nor the CPRs that the disputed order gave rise to an immediate obligation to pay the costs. At all material times, the order was subject to the right to apply to have it set aside or varied, which the judge was entitled to limit due to the defendants' conduct.