Shaker v Al-Bedrawi & Ors

The general rule that costs follow the event may be displaced after considering all the circumstances, including partial success and party conduct. Indemnity costs require circumstances out of the ordinary. Where a judge has dismissed the action and expressed adverse views about a party and the conduct of the case, any real ground for doubt about the appearance of impartiality should be resolved in favour of recusal. The practical advantages of judicial continuity do not necessarily outweigh that concern.

The Court of Appeal was dealing with the costs consequences of its earlier judgment, which had allowed the appellant’s appeal. It also determined costs of the appeal, applications to adduce new evidence and a proposed amendment, applications for permission to appeal, and directions for the resumed trial.

The appellant sought costs below and argued that the resumed trial should be heard by a judge other than Lawrence Collins J, who had dismissed the action and criticised aspects of the evidence and conduct of the case. The central issue was whether the judge’s prior views created a sufficient appearance of possible partiality to require recusal.

1. The court applied Civil Procedure Rules 1998, r 44.3. Costs generally follow the event, but the court may depart from that rule after considering all the circumstances, including the conduct of the parties and whether a party succeeded on only part of its case.

2. Indemnity costs require circumstances out of the ordinary. The appellant’s failure below to advance the successful argument, and the resulting preliminary-issue costs, justified leaving the costs order below in place as against Steggles Palmer. The court declined to impose further adverse appeal costs against Mr Bedrawi because the appellant had been substantially successful.

3. The costs of the appeal were awarded to the appellant against Mr Bedrawi and Steggles Palmer, subject to the appellant paying the costs of the application to adduce new evidence and the costs of the proposed amendment. The unresolved allocation of costs between the appellant and Mr Bedrawi was remitted to the further hearing before the same judge.

4. For the resumed trial, the court considered the advantages of retaining the existing judge, including his familiarity with the case, but treated those advantages as limited because the earlier trial had barely begun. Applying the principle in Locabail UK v Bayfield Properties [2000] QB 451 at page 480G, any real ground for doubt should be resolved in favour of recusal. The trial was therefore ordered to be heard by a judge other than Lawrence Collins J.

5. Permission to appeal was refused by the Court of Appeal. Any renewed application was left to the House of Lords.

• Court of Appeal (Civil Division): dealt with the costs consequences of its earlier judgment allowing the appeal, refused permission to appeal, and directed that the resumed trial be heard by a different judge.
• High Court, Chancery Division: Mr Justice Lawrence Collins had dismissed the action and directed that certain costs issues be dealt with at a further hearing.