Mahtani v Sippy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 26 September 2013 |
| Neutral Citation | [2013] EWCA Civ 1820 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2013/0666 |
| Date | 26 September 2013 |
[2013] EWCA Civ 1820
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(LORD JUSTICE PATTEN)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Aikens
Case No: A3/2013/0666
Mr James Goudie QC (instructed by Zaiwalla) appeared on behalf of the Applicant
Ms Clare Reffin (instructed by Gallant Maxwell) appeared on behalf of the Repondent
This is an application for two orders on behalf of the respondent to a pending appeal. The first proposed order is that a stay on the costs order made by Mr Justice Walker on 19 February 2013, which stay was granted by Lord Justice Patten under his order of 30 July 2013, be lifted. That application is made pursuant to paragraph 4 of the order of Lord Justice Patten on 30 July 2013. The second application of the respondent is that a condition be imposed upon the appellants, as they now are, as a condition of being able to pursue this appeal. This application is made under CPR52.9.12 (c). The condition sought is that there should be payment of the sum of costs ordered by Mr Justice Walker under his order of 19 February 2013, which was that £72,076.05 be paid to the respondent.
An order is also sought as part of this condition that there be payment of interest on that sum at the judgment rate of 8 per cent. That would bring the sum of costs for which payment is sought up to something just over £75,000.
The background to these applications is as follows: there is a dispute between descendants of the late Mr Tikamdas Sobhraj Sulani concerning a family arrangement entered into in 2009. The family arrangement is a device known to Hindu personal law for the purposes of organising succession and, ironically, given the present case, for avoiding subsequent legal disputes. It is accepted on behalf of the appellants that this concept has no equivalent doctrine under English law.
The appellants claim that the respondent is obliged to ensure that the family arrangement is adhered to by her son, Mr Sascha Sippy, and that if he does not adhere to it that she, the respondent, (the son's mother, obviously), must indemnify the appellants against any costs or other losses which they thereby incur. A claim was made on that basis and pleadings were settled.
Various applications were made before Mr Justice Walker, including on 4 February 2013, an application by the then claimants to amend their particulars of claim to make this specific claim against the respondent. In support of that application for permission to amend the pleading, the claimants then relied upon a report by an expert in Indian law. Mr Justice Walker took the view that there was nothing in that report which disclosed an arguable case on Indian law and he dismissed the application for permission to amend, struck out the claim against the respondent, and ordered that the claimants, as they were then, pay the respondent's costs in the sum I have mentioned. It was made on an "indemnity" basis.
There was, within the time allowed, an application for permission to appeal. Within that application there was also an application for a stay of the costs order.
The application for permission to appeal first came before me on paper. I refused permission to appeal and I refused to grant a stay. The matter was then reconsidered at an oral hearing by Patten LJ in July of this year. I have been told that at that hearing the respondent was represented, although taking no part in the hearing. Lord Justice Patten gave permission to appeal. The appeal is now pending and, I am told, is likely to be heard on either 29 or 30 of October this year.
The hearing before Patten LJ was, as these hearings are, short. After the main hearing Lord Justice Patten was asked to come back into court in order to deal with an application for a stay in respect of the costs order. Patten LJ made a stay, as I have already indicated, with the rider that the respondents had permission to apply to a single LJ on notice to vary or rescind the stay order.
The respondents thereafter applied, through a respondent's notice dated 14 August 2013, to rescind or vary that order in respect of the stay. At the same time they make an application for the condition as I have indicated.
The position so far as the parties are concerned is that the appellants are resident out of the jurisdiction, one being in Florida and the other being in Jamaica. It appears that there are various properties, particularly in Florida, USA. One, which was the subject of the litigation but is not any longer, appears to be still part of the estate of the late Mr Sulani. Another appears to be owned by one of the appellants. The respondent is resident in this jurisdiction, the United Kingdom.
There is no evidence adduced by either party as to what assets either party has within the jurisdiction, nor is there any evidence in any more particular sense about assets outside the jurisdiction. There is, however, a statement by Mr Sarosh Zaiwalla, a solicitor and senior partner in Zaiwalla & Co LLP, on behalf of the appellants, which deals in part with the possibility of enforcing judgments in Florida, USA. At paragraph 19 of his statement, which is dated 24 September 2013, Mr Zaiwalla sets out the process for enforcing a judgment.
That is, broadly speaking, the factual position. I should add that, at the time of the hearing before Mr Justice Walker in February of this year, there had been an application...
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