David Haigh v Westminster Magistrates' Court Hisham Al Reyes and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 22 March 2017 |
| Neutral Citation | [2017] EWHC 559 (Admin) |
| Date | 22 March 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6627/2015 |
[2017] EWHC 559 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/6627/2015
and
Alun Jones QC and Thom Dyke (instructed by Keystone Law) for the Claimant
Justin Fenwick QC and Andrew Bodnar (instructed by Bryan Cave LLP) for the 1 st and 2 nd Interested Parties
Adrian Darbishire QC (Instructed by Peters and Peters) for the 3 rd Interested Party
Approved Judgment
This is the judgment of the Court.
When judgment in this matter was handed down on 16 th February 2017 — see [2017] EWHC 232 (Admin), a number of matters relating to costs remained unresolved. We ordered that they should be dealt with on the basis of written submissions and in writing. We received written submissions from the 1 st and 2 nd Interested Parties on 15 th February 2017, from the 3 rd Interested Party on 22 nd February 2017 and from the Claimant on 24 th February and 1 st March 2017.
The material on which our decision should be based
Mr Jones QC on behalf of the Claimant argues that we should take account of the Claimant's witness statement of 25 th April 2016 on the grounds that this gives information as to his treatment in Dubai after his arrest there, his reasons for first bringing and then abandoning the private prosecution of the Interested Parties. Mr Jones argues that 'the Court should only countenance any order of costs in favour of the Interested Parties after an evidential hearing at which the facts alleged in the Claimant's statement are adjudicated upon. The Claimant is willing to give evidence in person.'
We reject the suggestion. What is proposed would be a classic example of satellite litigation. We are considering what costs orders should be made in relation to the judicial review application which we heard. We will make our decision on the basis of the submissions of the parties and the documents which were before the court as part of that application. Permission to rely on the statement of the Claimant dated 25 th April 2016 was expressly refused by the Lord Chief Justice and Singh J. (see paragraph 4 of their order). There will be no further hearing and no oral evidence.
Should there be any party/party costs orders?
The Claimant's position is that there should be no order as to costs. He submits that he has been successful on ground 4 and, as a result, the costs orders made by DJ Ikram have been reduced from £121,500 to £100,000 in the case of the 1 st and 2 nd Interested Parties and from £108,946 to £90,000 in the case of the 3 rd Interested Party. The Interested Parties contend that the Claimant should be ordered to pay their costs.
In our judgment the Claimant should be required to pay the Interested Parties' costs. Three grounds of challenge were dismissed. While the Claimant did succeed to some extent on the fourth: (a) the reductions were relatively modest; (b) a number of the arguments advanced by the Claimant in respect of even this fourth ground were rejected; (c) the reductions were less than the Interested Parties had offered to accept: (i) the 1 st and 2 nd Interested Parties on 3 rd March 2016 offered to accept £72,000 and for a smaller sum still on 10 th August 2016. (ii) By a letter dated 24 th February 2016 the 3 rd Interested Party offered to accept 50% of his costs. All of the Interested Parties made offers within a reasonable time of Blake J's decision on the papers in which he granted limited permission to apply for judicial review and urged the parties to consider compromise.
The 1 st and 2 nd Interested Parties had the same representation. The 3 rd Interested Party was separately represented. From what we have already said, it does not automatically follow that the Claimant should be required to bear two sets of costs. However, on the facts of the present case that is justified. The issue of separate representation was considered in paragraphs [59] and [65] of Gross LJ's judgment. The nature of the grounds of challenge to DJ Ikram's decision (particularly ground 4) meant that separate representation continued to be justified.
Should the Interested Parties' costs be assessed (if not agreed) on the standard or indemnity basis?
On either basis to be recoverable the costs must have been actually and reasonably incurred and have been reasonable in amount – see CPR r. 44.3(1). However, if costs are assessed on the standard basis, they must also have been proportionate and any doubt (as to proportionality or reasonableness) is resolved in favour of the paying party – r.44.3(2). Where costs are assessed on an indemnity basis, the costs, if reasonable, do not also have to have been proportionate. Any doubt is resolved in favour of the receiving party – r.44.3(3). The standard basis is the normal basis for assessment. There has to be something which takes the case out of the norm to justify the indemnity basis for assessment- see for instance Euroption Strategic Fund Ltd. v Skandinavskia Euskilda Banken AB [2012] EWHC 749 (Comm) at [11] – [15].
In this case we consider that there were two features of the Claimant's case which took it out of the norm. First, what were described in the judgment of Gross LJ as 'New and grave allegations' included allegations that the Interested Parties' claims for costs...
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David Haigh v Westminster Magistrates Court (1) Jinesh Patel and Others (Interested Parties) Alun Jones QC (2nd Respondent)
...see [2017] EWHC 232 (Admin). Certain matters remained outstanding and a further judgment was handed down on 22 nd March 2017 – see [2017] EWHC 559 (Admin). One of the outstanding matters was a possible application for wasted costs which had been mooted by the 1 st and 2 nd Interested Part......