Habib Bank Ltd. v Ahmed & Ors

On an application for permission to appeal, the Court of Appeal will not interfere with a trial judge’s factual conclusions merely because evidence can be re-marshalled. The applicant must identify a genuinely significant error capable of affecting the result. Evidence overlooked by the trial judge will not justify appellate intervention where the judge’s other findings make the proposed conclusion untenable. In assessing costs, the court must first decide whether the bill is disproportionate. If it is, detailed scrutiny is required, with doubts resolved in favour of the paying party. Costs will not be shifted to the unsuccessful party for unnecessary duplication, inflated descriptions of routine work, unjustified attendance, or additional counsel whose instruction operated only as insurance.

Habib Bank Ltd obtained and registered a judgment against Mian Aftab Ahmed arising from guarantees. It later sought charging orders over the Watermead Hotel and Harper’s Fitness Club. Mr Ahmed’s wife and sons intervened, asserting beneficial interests arising from alleged contributions and transfers. Simon J made the charging orders absolute and made restorative orders under Insolvency Act 1986 s.423, finding that the transactions were substantially or entirely intended to put assets beyond the bank’s reach.

Permission to appeal was initially refused, but renewed permission was considered because the trial judge might have overlooked evidence from Mr Ahmed’s son concerning what he had been told about the hotel purchase. The central issue was whether that evidence could realistically have affected the judge’s conclusions. The court also determined the bank’s costs of opposing the application.

1. Permission to appeal refused. The application concerned findings of fact and disclosed no arguable case that the trial judge had misunderstood the evidence or erred in his approach to the burden of proof.
2. The evidence said to have been overlooked did not provide a material basis for disturbing the decision. Even if the judge accepted the son’s recollection that his parents had told him in 1994 that Mrs Ahmed had provided the purchase funds, that did not establish the truth of the underlying assertion. The judge had rejected the explanations for the source of the funds after detailed analysis, including the conflict between the alleged dividends and Pioneer’s accounts, and the absence of a credible explanation for the balance remitted.
3. The court rejected the submission that acceptance of the son’s evidence necessarily altered the judge’s assessment of the other witnesses or the source of the funds. The reasons for concluding that the money was not shown to have been Mrs Ahmed’s were too strong for the omitted evidence to have affected the result. No discrete ground of appeal concerned the health club.
4. The bank was entitled to the costs of resisting the application. Applying Home Office v Lownds [2002] EWCA Civ 365, the court held that the bill was disproportionate and therefore required detailed scrutiny. Under CPR 44.4(2), doubts arising during that scrutiny were resolved in favour of the paying party.
5. The court allowed £16,195 in total, excluding leading counsel’s fees, limiting preparation under documents to £1,400, attendances to £900, court attendance to £752.50, and allowing junior counsel’s fees of £12,750 and transcription costs of £115.

• Court of Appeal (Civil Division): Peter Gibson LJ refused permission on the papers. On oral renewal, Brooke and Latham LJJ considered that an arguable point might exist and directed a hearing. The court then refused permission and assessed the respondent bank’s costs at £16,195.
• High Court of Justice, Queen’s Bench Division: Simon J made charging orders over the two properties absolute and made further restorative orders under Insolvency Act 1986 s.423.