Appealing a case management decision (Collatory Case)

In Ward v Rai [2026] EWCA Civ 816 ('Ward'), the Court of Appeal (Falk LJ, Jeremy Baker LJ; Foxton LJ) heard a second appeal against a case management decision. 

Essential facts

In essence, during the course of a detailed assessment hearing, at the end of day 2 (6.8.24), the first instance judge, Deputy Costs Judge Friston (the 'Costs Judge'), gave an ex tempore judgmemt, making certain case management decisions ('CMDs'), contrary to what was argued by the Claimant. The CMDs were to:

(1) '...refuse to strike out a point of dispute which challenged the work on documents section of the claimant's bill of costs' (Ward, paragraph 1); and

(2) '...allow the defendant to rely on a late-filed schedule setting out details of the challenges to that section.' (Ward, paragraph 1);

The detailed assessment hearing then went into a Day 3 (8.11.24).

The disappointed claimant appealed. On the first appeal, Hill J (the 'Judge') allowed the appeal; the defendant then appealed the Judge's decision, to the Court of Appeal. 

The above are the essential facts in Ward. However a fuller description of the provided in a footnote[1]. In addition, a description was given the detailed assessment process (also in a footnote[2]).

Exposition of the law

Under the heading 'Discussion', Falk LJ (with whom Jeremy Baker LJ; Foxton LJ agreed) in Ward said, at paragraphs 34 and 35:

'It is well-established that appellate courts should not interfere with such decisions simply because they disagree with them or otherwise consider that they would have taken a different course. Rather, as Lewison LJ reiterated in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51]:

"Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge's decision was wrong in the sense that I have explained."

Thus, as Lord Neuberger indicated when approving this passage in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64, [2014] 1 WLR 4495 at [13], the essential question is whether the decision could properly have been made. I would add by way of emphasis that the question is not whether the appellate court considers - however strongly - that it would have made a different decision.'

Then Falk LJ in Ward turned to the case before her, and said, at paragraph 36:

'The Judge carefully directed herself as to these principles at [62]-[65] of her judgment, and reminded herself of them again at [132]. However, I have reluctantly concluded that her decision nonetheless strayed beyond the limits set by them, such that the appeal must be allowed. ... the Costs Judge's decision disclosed no error of principle or failure to take relevant matters into account, and did not otherwise fall outside the ambit of his discretion. It should therefore not have been set aside.'

Falk LJ in Ward then said, at paragraphs 37 to 43:

'Some preliminary observations are appropriate.

First, one of the reasons why appellate courts must exercise caution when reviewing case management decisions is that it is impossible to recreate the situation before the judge. There is an analogy with an appeal on facts, where an appellate court will be island-hopping whereas the judge will have reviewed the sea of evidence (FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 at [114]). On an appeal against a case management decision an appellate court is simply not in the same position as the judge. It will not have the same perspective of the circumstances as they appeared to the judge "on the ground" at the time, it risks being influenced by hindsight, and (as the submissions in this case have also illustrated) it also risks being influenced by arguments that were simply not made or at least were not developed before the judge, and which have benefited from a lengthy period of gestation.

The second, related, point is that case management decisions are frequently made under significant pressure. This case provides an excellent example. The Costs Judge had little option but to make an immediate decision at the end of the second day, with an unreserved judgment, because he had to decide whether to complete the assessment on that day or to adjourn.

This leads to the third point. It should not be forgotten that an ex tempore judgment is just that, unreserved and lacking in the preparation that would go into a reserved judgment. It should be read as a whole, with those points - and the circumstances in which it was delivered - in mind, rather than picked apart in minute detail. An uncontroversial example of this is that both parties proceeded in this court on the basis that striking out Point 23 and permitting reliance on the annotated schedule really stood or fell together, despite them being considered sequentially by the Costs Judge. In the pressured circumstances he was under, the quality of the Costs Judge's judgment is to be commended.

The fourth point is this. The points that have arisen in this case have included an alleged lack of reasoning on the part of the Costs Judge, as well as some confusion caused by what appears to have been a mis-recollection on his part at the adjourned hearing as to precisely what his reasoning had been at the earlier hearing. [Counsel for Mr Rai] reminded us of what Munby LJ said in In re A (Children) [2011] EWCA Civ 1205, [2012] 1 WLR 595 at [16]:

"… it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process."

In this case [Mr Ward's] failure to do so is all the more marked by the fact that, by the date of the adjourned hearing on 8 November, his legal team had obtained a transcript of the judgment under appeal, but had neither shared it with [Mr Rai] nor provided a final version to the Costs Judge. Further, no permission to appeal against the decision on 6 August was sought at any stage from the Costs Judge, which might also have provided an opportunity for clarification, and (relying on CPR 47.14(7)) no appeal was filed in the High Court until after the November hearing.

This brings me to my final preliminary point, costs and court resources. It does no credit to the justice system for there to be appeals on case management issues which do not, on analysis, raise material points of principle and the cost implications of which must risk outweighing the sums at stake. This reinforces the importance of parties seeking clarification, and where appropriate, reconsideration by the first instance judge. An appeal should be a last resort....'[3]

On the facts in Ward, the appeal was allowed. Falk LJ, at paragraph 60, emphasised that this was '...on the basis that this was a decision that the Costs Judge was entitled to make within the generous ambit of his discretion. It was neither the only decision he could make, nor was it one with which other judges would necessarily agree.'

Collatory Case Series

The Collatory Case Series, is an series of bulletins, designed to report that one case (perhaps, with a few extra authorities), which collates the essential principles/propositions of law, for a particular doctrine/area of law. It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.

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