Rashpal Samrai v Rajinder Kalia

Hearing date: 4 th June 2025

JUDGMENT ON COSTS

Introduction

Pursuant to the Judgment dated 9 December 2024 in the main action, [2024] EWHC 3143 (KB) (“the main judgment”), costs issues have arisen resulting in a further hearing on 4 June 2025.

After the handing down of judgment in the main action, on 10 January 2025 the successful Defendant issued an application for wasted costs against the Claimants' solicitors and counsel. This has had the effect of those representatives having to withdraw from the case, leaving the Claimants to find fresh representation. Miss Fenelon has appeared pro bono and Mr Ingham as Direct Access Counsel. The Defendant's representation has remained unaltered.

As the successful party, it is not in dispute that the Defendant is, in principle, entitled to his costs of the action. The issues that have arisen concern:

i) The basis for the detailed assessment of costs;

ii) The extent to which the Defendant may enforce costs in his favour in respect of the First to Fourth Claimants' claims where those claims included claims for personal injury and therefore prima facie enjoy costs protection;

iii) Whether there should be interim payments on account of costs and, if so, whether they should be immediately enforceable.

So far as the applications for wasted costs against the Claimants' former representatives is concerned, it was not possible for that matter to be heard at the same time as the other matters on 4 June 2025. Thus, whether, and the extent to which, the Claimants may be relieved of their primary liability to pay the Defendant's costs by virtue of wasted costs being ordered against their former representatives remains to be determined on another date. As will be seen, this has implications for the enforceability of any Order for an interim payment on account of costs which might be made in this judgment.

Finally, by way of introduction, two further applications were heard and determined on 4 June 2025: The Defendant's application for permission to appeal against my failure to find, in the main action, that there had been “fundamental dishonesty” on the part of the Claimants. Although this has no bearing on the outcome of the case given that the Defendant was successful in any event, it might have had a bearing on whether a finding of fundamental dishonesty overrides the protection which personal injury claimants otherwise have under the “Qualified One-Way Costs Shifting” provisions of CPR 44.13 and following. In the event, I refused permission to appeal on the basis that I did not consider it to be arguable that my decision not to make a finding of fundamental dishonesty was one which no reasonable judge could make.

The other matter dealt with on 4 June 2025 was an application on the part of the First Claimant for permission to appeal against the dismissal of her action against the Defendant. Again, I refused such permission. I considered that, in order for any appeal to have reasonable prospects of success, it would have to be shown that the substantive grounds of appeal, if successful, would have resulted in my reversing my decision not to exercise my discretion and disapply the limitation period. However, in my judgment, the reasons I expressed in the main judgment for refusing to exercise my discretion to disapply the limitation period (see paragraph 313 of the judgment) were so powerful that, even if the Court of Appeal considered the grounds of appeal to be well founded (which I do not), the decision on limitation would have been the same. For those reasons, permission to appeal was refused.

Basis of Assessment

For the Defendant, Ms Crowther KC submits that the costs payable by the Claimants should be assessed on the indemnity basis. In accordance with the decision of the Court of Appeal in Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 379 she submits that the test is whether there is something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs. She submits that there is no requirement for the case to be exceptional and it is not necessary to show deliberate misconduct: unreasonable conduct to a high degree can suffice. Where a case has been brought on a factual premise which was fundamentally false and which the Claimants knew to be false, this may be sufficient to take the case out of the norm. In support of her submission, Ms Crowther relies on the findings in the main judgment to the effect that the First to Fourth Claimants suborned witnesses, suppressed and destroyed evidence, lied and were dishonest to the court, to the police and to medical experts.

For the Second to Seventh Claimants, Mr Ingham submitted that there is no sufficient basis upon which the court should conclude that their conduct crossed the high threshold required for an indemnity costs order. He points to the fact that the court declined to make findings of fundamental dishonesty against the Claimants recognising that there was an evidential basis upon which the claims could have succeeded. In addition, he submitted that the conduct relied on by Ms Crowther included procedural irregularities and exaggerated financial schedules which predominantly arose due to the serious failings on the part of the Claimants' former legal representatives rather than deliberate or unreasonable conduct by the Claimants themselves. Finally, Mr Ingham relies upon the Defendant's own conduct which was the subject of criticism in the main judgment including making categorical denials subsequently found to be false by the court and which materially contributed to the complexity and length of the litigation. He submits that, in these circumstances, it would not be just or appropriate to characterise the Claimants' conduct as sufficiently unreasonable or exceptional as to justify an indemnity costs order.

For the First Claimant, Ms Fenelon supports and adopts Mr Ingham's submissions. In addition, in respect of her client, she distinguishes her case from that of the Second, Third and Fourth Claimants in that it was found that her claim that she had engaged in a long-term sexual affair with the Defendant was true.

Ultimately, the basis of assessment of costs is in the wide discretion of the trial judge. For the reasons set out by Ms Crowther in her Skeleton Argument, I find that the conduct on the part of the Second, Third and Fourth Claimants, and in particular their allegations that the Defendant exploited his position as leader of the Baba Balak Nath Temple in Coventry to exploit them sexually and financially not to have been proved, and therefore to be untrue, takes their cases out of the norm and justifies an indemnity costs order, when taken with their other conduct. However, I decline to make an indemnity costs order in the case of the First, Fifth, Sixth and Seventh Claimants and their costs shall be assessed on the standard basis.

Enforcement of Costs in respect of the First to Fourth Claimants: QOCS

The order made on 9 December 2024 arising out of the main judgment provided that cost orders against the Fifth, Sixth and Seventh Claimants are enforceable without the need of the court's permission. However, the claims of the First to Fourth Claimants include claims for personal injury and therefore engage the provisions of the CPR relating to “Qualified One-Way Costs Shifting”.

By CPR 44.13, the Qualified One-Way Cost Shifting provisions apply to proceedings which include a claim for damages for personal injuries, as in the case of the First to Fourth Claimants. By CPR 44.14 it is provided:

“(1) Subject to rules 44.15 and 44.16, orders for costs made against the Claimant may be enforced without...