Mohinder Singh Khaira & Others v Daljit Singh Shergill & Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Moylan,Lord Lloyd-Jones |
| Judgment Date | 27 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1687 |
| Docket Number | Case No: A3/2016/1593 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 2017 |
[2017] EWCA Civ 1687
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR RICHARD SPEARMAN QC (sitting as a Deputy Judge of the High Court)
CH/2015/0478
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Lloyd-Jones
Lord Justice David Richards
and
Lord Justice Moylan
Case No: A3/2016/1593
P.J. Kirby QC and Rupert Cohen (instructed by Kain Knight Costs Lawyers for Sahota Solicitors) for the Appellants
Roger Mallalieu (instructed by Addlestone Keene) for the Respondents
Hearing date: 14 June 2017
Introduction
This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to an immediate assessment without the need for an express order to that effect? Secondly, if not and if the appellate court has not made an order for an immediate assessment, does a costs judge have jurisdiction to make such an order? A third issue is whether an order of the Supreme Court made in this case entitled the respondents to this appeal to an immediate assessment of their costs in the Court of Appeal.
The courts below (Master Simons sitting in the Senior Courts Costs Office and, on appeal, Mr Richard Spearman QC sitting in the Chancery Division as a Deputy Judge of the High Court) answered each of the first and second questions affirmatively. The third issue was not raised by the parties at either hearing but it was a point taken by the Deputy Judge and he held, as the primary ground for his decision, that the respondents were entitled to an immediate assessment of their costs in the Court of Appeal by virtue of the Supreme Court's order.
On account of the number of appeals in this case, it will be convenient to refer to the current appellants as the defendants and to the current respondents as the claimants.
Background
The background can be shortly stated. The underlying dispute between the parties relates to the trusteeship and governance of two Sikh Gurdwaras, and in particular whether the ninth claimant was the Third Holy Saint and the true successor of the First Holy Saint. If so, he had express power under the relevant trust deeds to appoint and remove trustees. The claimants issued proceedings in June 2008.
The defendants applied to stay or strike out the claim on the grounds that the issues raised by the claim were not justiciable. In September 2011, HH Judge Cooke, sitting in the Chancery Division, dismissed the application and ordered the costs, which he summarily assessed, to be paid by the defendants. On appeal, this court held that the issues were not justiciable and struck out the claim. On a further appeal, the Supreme Court reversed this court's decision and reinstated Judge Cooke's order, including his summary assessment of the claimants' costs and his order that they be paid by the defendants.
By an order dated 28 July 2014, the Supreme Court dealt with the costs in this court and in the Supreme Court. It ordered that "(1) The respondents pay the appellants' costs in the Supreme Court and the Court of Appeal, the amount of those costs to be assessed on the standard basis if not agreed between the parties, (2) The respondents pay the appellants £150,000 on account of their costs in the Supreme Court and the Court of Appeal."
Since the appeal before the Deputy Judge, the action has been tried and judgment entered for the claimants. The defendants accept that accordingly the claimants have since then been entitled to an immediate assessment of their costs in the Court of Appeal save that a stay was ordered by Jackson LJ by an order dated 2 June 2017 pending the determination of the application for permission to appeal the substantive decision.
The Rules
The relevant provisions of the Supreme Court Rules 2009 and the Civil Procedure Rules, applicable to the assessment of costs in the Supreme Court and in this court respectively, are significantly different.
Rule 48(1) of the Supreme Court Rules provides that "Where the Court has made an order for costs, the claim for costs must be submitted to the Registrar within three months beginning with the date on which the costs order was made." Rule 48 goes on to provide for the supply of information in support of the claim and for the service of points of dispute by the paying party and a response. Rule 49 makes provision for the assessment of the claimed costs.
The claimants submitted their claim for costs within three months after the Supreme Court's order dated 28 July 2014. The defendants accept that they were entitled to do so and entitled, under the Supreme Court Rules, to an immediate assessment of their costs in the Supreme Court without any order to that effect. The assessment simply follows from the operation of the Rules.
This appeal concerns the assessment of the claimants' costs in the Court of Appeal, which is governed by the CPR. The CPR do not contain separate provisions for the payment and assessment of costs at first instance and on appeal.
CPR 47.1 , which is headed "Time when detailed assessment may be carried out", provides:
"The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings, but the court may order them to be assessed immediately. (Practice Direction 47 gives further guidance about when proceedings are concluded for the purpose of this rule)."
CPR 47.2 provides that "Detailed assessment is not stayed pending an appeal unless the court so orders."
CPR 47.6 provides that detailed assessment proceedings are commenced by the receiving party serving on the paying party a notice of commencement and a copy of the bill of costs. CPR 47.7 sets out a table showing the period for commencing detailed assessment proceedings. One column of the table is headed "Source of right to detailed assessment" and the other column is headed "Time by which detailed assessment must be commenced". The first entry in the table is relevant for present purposes, with the source of the right being "Judgment, direction, order, award or other determination" and the time being three months "after the judgment etc", subject to any stay.
Paragraph 1 of Practice Direction 47 (47PD), to which CPR 47.1 refers and which is headed "Time when assessment may be carried out: rule 47.1", states in para. 1.1: "For the purposes of rule 47.1, proceedings are concluded when the court has finally determined the matters in issue in the claim, whether or not there is an appeal, or made an award of provisional damages under Part 41."
Under paragraph 1.3 of 47PD, a party served with a notice of commencement may apply to a costs judge to determine whether the party who served it is entitled to commence detailed assessment proceedings. It provides:
"A party who is served with a notice of commencement (see paragraph 5.2 below) may apply to a costs judge or a District Judge to determine whether the party who served it is entitled to commence detailed assessment proceedings. On hearing such an application the orders which the court may make include: an order allowing the detailed assessment proceedings to continue, or an order setting aside the notice of commencement."
Paragraph 1.4 of 47PD provides that a costs judge may make an order allowing detailed assessment proceedings to be continued where there is no realistic prospect of the claim proceeding.
The proceedings below
In August 2015, the claimants served a notice to commence the detailed assessment of their costs in the Court of Appeal. Exercising the right conferred by paragraph 1.3 of 47PD, the defendants applied to set aside the notice on the grounds that the claimants were not as yet entitled to a detailed assessment of those costs. Their grounds, in short, were that by reason of CPR 47.1 there could be no detailed assessment of those costs until the conclusion of the proceedings (as defined in paragraph 1.1 of 47PD) without an order for a detailed assessment made by the Court of Appeal or, exercising the powers of the Court of Appeal, by the Supreme Court. It was common ground before Master Simons that there had been no such express order. If they were wrong on that issue, they submitted that in the particular circumstances of the case, the costs judge should stay the assessment until after the trial of the action and judgment.
Master Simons refused the defendants' application. He held that, having regard to the judgments in this court in Hawksford Trustees Jersey Ltd v Stella Global UK Ltd [2012] EWCA Civ 987; [2012] 1 WLR 3581, the appeal was a separate proceeding from the main action and that it had concluded with the order of the Supreme Court. The claimants were therefore entitled to proceed to a detailed assessment of their costs in the Court of Appeal without any express order to that effect. Further, as a matter of discretion, Master Simons rejected the submissions that a detailed assessment should wait until the conclusion of the action.
On appeal, the Deputy Judge affirmed the decision of the Master. He held that for the purposes of CPR 47.1 an appeal is a separate "proceeding" from the action and that in the present case the relevant "proceedings" were brought to a conclusion at the end of the appeal to the Supreme Court. Accordingly, the claimants did not need an order for the immediate assessment of their costs in the Court of Appeal. He relied on the judgments in Hawksford.
The Deputy Judge further held that, if he was wrong on the first point, Master S...
To continue reading
Request your trial
-
Respecting the dignity of Religious Organisations: When is it appropriate for Courts to decide Religious Doctrine?
...will usually concern themselves with the question 51[2017] EWHC 883 (Ch) (3 March 2017). 52A later decision in Khaira v Shergill [2017] EWCA Civ 1687 (27 October 2017) involved a dispute over costs, which by then had become fairly substantial. 53[2017] EWHC 97 (Ch). University of Western Au......