Enkelmann v Stewart [No 2]

In Enkelmann v Stewart [No 2], the appellants sought to argue for a re-apportionment of costs after the substantive appeal had been heard. They contended that they had succeeded on issues or points that were ultimately not determinative of their legal rights. The court had to determine whether the appellants were entitled to make further submissions on costs without having sought leave, as per the Practice Direction. Additionally, the court considered whether the justice of the case warranted a re-apportionment of costs, given the appellants' partial success on their grounds of appeal.

The legal issues revolved around whether the appellants could make submissions on costs after the substantive appeal without obtaining leave, and whether there were special or exceptional circumstances to justify a re-apportionment of costs despite the appeal being unsuccessful. The court had to balance the procedural requirement of obtaining leave against the justice of the case, particularly in light of the appellants' partial success.

In its reasoning, the court acknowledged that the Practice Direction was designed to regulate the process of making submissions on costs after a judgment is published. However, the court noted that the appellants' failure to seek leave was due to an oversight by counsel. The court also considered the appellants' argument that their grounds of appeal had broader implications for litigants involving expert evidence. Despite the appellants' respectable argument, the court found that the justice of the case did not require the appellants to demonstrate exceptional circumstances, as the discretion to permit further submissions on costs is untrammelled but must be exercised judicially.

The court refused the application for leave to make further submissions on costs and ordered that the appellants pay the respondents' costs of the application. This decision underscored the importance of procedural compliance while also recognising the need to exercise discretion judicially.