Ramkarun Bushan Deepchand v Anbananden Sooben
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lewison LJ |
| Judgment Date | 29 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1409 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 October 2020 |
| Docket Number | Case No: A2/2019/0553 |
[2020] EWCA Civ 1409
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION,
MEDIA & COMMUNICATIONS LIST
Nicklin J
[2019] EWHC 1893 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Lord Justice Arnold
Case No: A2/2019/0553
Joshua Monro (instructed by Lambeth Solicitors) for the Appellants
Andrew Roy (instructed by MDL Solicitors) for the Respondent
Hearing date: 22 October 2020
Judgment Approved
Introduction
This is an appeal by Ramkarun Deepchand and Lambeth Solicitors from an order of Nicklin J dated 18 February 2019 refusing an application by Anbananden Sooben for a non-party costs order against the Appellants, but making no order as to costs. The Appellants contend that, since the application was refused, Mr Sooben should have been ordered to pay their costs of resisting the application.
Factual background
The factual background to the appeal is on any view extraordinary, involving a bitter dispute between two solicitors of Mauritian heritage, and therefore it needs to be set out in a little detail.
Mr Sooben is a solicitor. He was born in Mauritius, but came to live in the UK in 1964. He qualified as a solicitor after working for 23 years as a civil servant.
Mr Deepchand, who also has a Mauritian background, is now also a solicitor, having been admitted in September 2017. Mr Deepchand had worked in the legal sector for many years before that, however. On 21 October 2013 at Southwark Crown Court he was given a Conditional Discharge for 12 months on three counts of illegally providing immigration advice and services in 2009.
In November 2013 Mr Deepchand gave an interview to Mauritius Now. This was an English newspaper with a circulation of around 1,000 aimed at the Mauritian community in the UK. An article based on the interview by the editor, Eshan Badal, was published in the newspaper. Mr Deepchand used this interview to protest his innocence. As part of this, he alleged that Mr Sooben had attempted to suborn or procure him to commit perjury to support Mr Sooben's claim against Mr Sooben's former partner in an English solicitors' firm.
Mr Sooben issued proceedings against Mr Badal just before expiry of the limitation period in November 2014. In March 2016 Mr Sooben applied to join Mauritius Now Ltd, the publisher of the newspaper, and Mr Deepchand as defendants to the claim. The application for joinder was dismissed by Master McCloud in April 2016 because it was made well outside the limitation period.
Mr Badal was represented by Lambeth Solicitors. The fee earner at Lambeth Solicitors with conduct of Mr Badal's case was Benjamin Abu, a solicitor and a partner in the firm. Remarkably, Mr Deepchand was a trainee solicitor at Lambeth Solicitors at the time. Even more remarkably, Mr Deepchand worked on the case from time to time.
Mr Badal defended the claim on the bases of (i) the words complained of not being defamatory, (ii) justification, (iii) fair comment and (iv) Reynolds privilege. Mr Deepchand made a witness statement in support of Mr Badal's defence of justification.
The action came to trial before Nicklin J in October 2017. On the first day of the trial Mr Badal made an application that the claim should be dismissed under CPR Part 24 and/or section 8 of the Defamation Act 1996 on the grounds that (a) the words complained of were not defamatory and/or (b) the justification defence was bound to succeed. The judge dismissed this application.
In the event, it was not put to Mr Sooben in cross-examination that the perjury allegation was true. The judge therefore enquired whether Mr Badal was still so contending. It was confirmed that he was not. Justification and fair comment were thus not pursued as defences.
Nicklin J dismissed the remaining defences advanced by Mr Badal and awarded Mr Sooben £70,000 in damages for the reasons given in his judgment dated 31 October 2017 ( [2017] EWHC 2638 (QB)). As the judge explained, the maintenance and ultimate abandonment of the justification defence were significant aggravating factors in his assessment of damages.
Despite this success, Mr Sooben did not pursue Mr Badal for costs. Evidently this was because Mr Badal had limited means.
On 6 November 2017 Mr Sooben made an application, without prior notice, for the Appellants to be made jointly and severally liable for Mr Sooben's costs of his claim against Mr Badal pursuant to CPR rule 46.2. Mr Sooben sought £49,860 in costs.
The application notice alleged that Mr Deepchand was a “real party” to the claim because: (i) Mr Deepchand was the speaker of the defamatory words in the article; (ii) Mr Deepchand had given a witness statement in support of Mr Badal; (iii) Mr Deepchand had defended, or procured Lambeth Solicitors to defend, the claim on behalf of Mr Badal notwithstanding that the pleaded defences had “no merit whatsoever”; and (iv) Mr Deepchand “therefore stood to benefit personally from causing [Mr Sooben] to incur irrecoverable costs and/or being paid for his work on the case”.
The application notice alleged that Lambeth Solicitors had advanced Mr Badal's defence in spite of the fact that it had “no merit whatsoever” and “may well have funded the claim in the sense of advancing credit to [Mr Badal] for their work and/or in respect of disbursements and in any event sought to benefit financially from the case by way of their profit costs”. No application was made for a wasted costs order pursuant to CPR rule 46.8, however.
The Appellants resisted the application. Their position, in summary, was that the application notice disclosed no good grounds for a non-party costs order and therefore the application should be dismissed.
The matter came on for hearing before Nicklin J on 14 March 2018 with a time estimate of three hours. At that hearing, Mr Sooben applied without notice for an adjournment of the application. The grounds for the application, as explained orally by counsel for Mr Sooben, were that Mr Sooben wished to obtain a witness statement from Mr Badal. Mr Sooben alleged that Mr Badal had informed Mr Sooben's solicitors that the litigation had been controlled by Mr Deepchand; but that, the day before the hearing, Mr Badal had telephoned them to say that he had been intimidated by Mr Deepchand and doubted that he would attend the hearing. In the event, however, Mr Badal was present in court at the hearing.
The Appellants resisted the application for an adjournment. The judge observed that the application on its face, and absent evidence from Mr Badal, appeared very weak, but he nevertheless granted the adjournment, gave the parties permission to file further evidence and reserved the costs.
No application was made by Mr Sooben to amend his application notice to allege that Mr Deepchand had controlled the litigation; but nor did the judge require that to be done.
Both parties did file further evidence, which in the case of Mr Sooben included a witness statement from his solicitor containing hearsay evidence attributed to Mr Badal that (in addition to what had been alleged at the hearing on 14 March 2018) Lambeth Solicitors had not charged Mr Badal for their work, but only for disbursements. No witness statement from Mr Badal was filed or served by Mr Sooben, however.
On 12 April 2018 Mr Badal sent a long letter to Nicklin J which, among other things, disputed Mr Sooben's allegations that Mr Deepchand had controlled the litigation, that Mr Badal had not been charged by Lambeth Solicitors for their work and that Mr Badal had been intimidated by Mr Deepchand. Nicklin J declined to read the letter unless it was copied to the other parties. A copy of the letter was sent to Lambeth Solicitors on about 21 April 2018, but not to Mr Sooben's solicitors. The Appellants decided not to rely on the letter or put it in evidence, and did not refer to it in witness statements filed subsequently.
The application was eventually re-listed for a directions hearing before Nicklin J on 18 February 2019. Shortly before the hearing, Mr Badal filed and sent to the parties a witness statement dated 15 February 2019 referring to his letter dated 12 April 2018 and essentially repeating what he had said in that letter, but this time verified by a statement of truth.
At the hearing, it was submitted by counsel for Mr Sooben that directions should be given for a trial of up to three days preceded by disclosure and exchange of witness statements. Counsel informed the judge that Mr Sooben's solicitors had recently located digital audio files which, he alleged, demonstrated that Mr Badal's and Mr Deepchand's witness statements were untrue, and that Mr Sooben sought time in which to have these files transcribed for disclosure. It was submitted by counsel for the Appellants that the application should be dismissed.
The judge decided that he should “decline to embark on the exercise of determining [Mr Sooben's] application” because “it will not be possible to do so proportionately”. His reasons for reaching that conclusion were, in summary, that it was inevitable that at least two people, and more likely four, would have to give oral evidence and be cross-examined, which was not a summary procedure, but a trial; and that the costs of that exercise would be disproportionate to the sum which was in dispute. Furthermore, there was a real risk that the issues in the case would broaden to encompass the question of whether Mr Deepchand's allegations against Mr Sooben...
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