Bibby Factors (Sussex) Ltd v Rehman & Ors

Where an interlocutory application is overtaken by events and is no longer pursued, costs will ordinarily follow the event, namely the applicant’s failure to obtain the relief sought. Costs should not generally be reserved to the hearing of a substantive appeal merely because that court may later have fuller information. An earlier indication in the transcript of an order does not justify withholding costs where no variation was sought and a subsequent stay application was refused. A suggested tactical motive for seeking costs is insufficient to displace the usual approach.

A committal order was made against the first defendant for contempt of court after he failed to attend court and misled the court about his absence. The order was suspended on conditions, including submission to a medical examination by a specified date. The defendant appealed against the committal order and sought a stay of the medical-examination condition.

The trial judge refused the stay application, and Chadwick LJ subsequently refused a stay on the papers. The defendant underwent the examination before the application was renewed in the Court of Appeal. The application was therefore no longer pursued, leaving the costs of the abortive application as the only live issue.

Lord Justice Jonathan Parker ordered the applicant to pay the claimant’s costs of the abortive application, summarily assessed at £4,123.50 and payable within 14 days.

1. The application had been overtaken by events because the applicant had undergone the medical examination. The court treated that as the relevant event and held that the prima facie proper order was for costs to follow it.
2. There was no sufficient reason to reserve costs to the court hearing the substantive appeal or to make them costs in the appeal. The possibility that the appellate court might later have a fuller picture of the circumstances did not justify postponing the costs decision.
3. An earlier statement by the judge who made the committal order, indicating that the applicant would have some choice over the location and date of the examination, did not alter the result. No application had been made to vary the order after it was drawn, and the later application for a stay had been refused.
4. The submission that the claimant was seeking costs tactically, to put pressure on the applicant’s funding of his defence while a freezing order restricted expenditure, was rejected. It did not justify departing from the usual costs order.

1. Central London County Court: His Honour Judge Knight QC made a committal order on 19 April 2002, suspended on conditions including a medical examination, and refused the applicant’s subsequent application for a stay on 7 May 2002.
2. Court of Appeal (Civil Division): Chadwick LJ refused an application for a stay on the papers. The renewed application became abortive after the medical examination took place. Lord Justice Parker determined the costs issue and ordered the applicant to pay the claimant’s costs.