Kashi v Harvey

Costs do not invariably follow the event. An adjournment may properly be granted on terms that the successful applicant pays the costs, particularly where the adjournment is sought for that applicant’s own convenience and the other party neither wants nor causes it.

On a second appeal, permission is available only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. A claimant cannot substitute or add other parties to continue proceedings after accepting that the claim, as pleaded, is based on an ownership proposition which cannot succeed.

The applicant sought permission to appeal two decisions. The first concerned an order by Mr Justice Buckley that the costs of an adjourned appeal hearing should be costs in the appeal. The second was a second appeal from Mr Justice Gray, who had upheld the striking out of the applicant’s claim after he accepted that he was not the owner of the goods.

The applicant sought to substitute or add his children as claimants, asserting that they had owned the property before the proceedings began. The central questions were whether the costs order disclosed an appealable error and whether there was a realistic prospect of a successful second appeal concerning party substitution or addition.

1. Costs of adjournment. Although costs normally follow the event, that is not an absolute rule. An adjournment may properly be ordered with costs in the appeal, or payable by the successful party who sought it, where the adjournment arose from that party’s own circumstances and was opposed by the other party. The order made by Mr Justice Buckley was entirely justifiable.
2. Second appeal. Under CPR 52, permission could be granted only if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason for the Court of Appeal to hear it. No such ground was shown.
3. Substitution and addition of parties. The claim had been brought on the basis that the applicant owned the goods. Once he accepted that he did not own them, the claim in its existing form could not succeed. Substitution under CPR 19.2 could not assist because the applicant’s case was that ownership had passed to the children before the proceedings began, not during them. Addition of the children could assist only if it would help resolve matters in dispute or involved an issue connected with those matters. On the applicant’s acceptance, no such matters remained for resolution. The children were not thereby barred from bringing a separate action.
4. Both applications were refused.

• Court of Appeal (Civil Division): Applications for permission to appeal and for a stay of execution were refused.
• High Court: Mr Justice Gray rejected the appeal from the Central London County Court’s decision to strike out the claim.
• Central London County Court: His Honour Judge Goldstein refused the application to substitute the children as claimants and struck out the claim.