Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz

An order requiring an impecunious claimant to pay costs as a condition of continuing a claim may pursue a legitimate aim, but it is unlawful under Article 6(1) where it prevents determination of the claim at first instance and thereby impairs the essence of the right of access to a court. The court must assess the claimant’s inability to pay and the stage reached in the proceedings. A party’s non-compliance with a costs order does not, without more, justify refusing to hear that party.

The claimant’s assigned claim concerned an alleged oral agreement under which the defendant agreed to pay her £12 million and procure the transfer of two properties. The first trial resulted in judgment for the claimant, but the Court of Appeal allowed the defendant’s appeal on substantive grounds and ordered a retrial: [2016] EWCA Civ 556. The Court of Appeal also ordered the claimant to pay £250,000 on account of the defendant’s appeal costs.

The claimant, unable to pay, sought directions listing the retrial. The defendant sought an order striking out or staying the claim unless payment was made, and argued that the claimant should not be heard while in contempt. The issues were whether the proposed order would unlawfully interfere with Article 6(1), and whether the claimant’s non-payment justified refusing to hear her application.

Applications dismissed and retrial directed.

1. The claimant established that she could not pay £250,000 from her own resources or borrow it. An order making payment a condition of continuing the claim would therefore cause the claim to be struck out or stayed indefinitely.
2. The order would pursue a legitimate aim, namely securing some recompense for the defendant’s appeal costs. Nevertheless, Article 6(1) required consideration of the claimant’s means, the stage of proceedings and the practical effect of the restriction. The claimant had not obtained a determination at first instance because the retrial resulted from deficiencies in the first-instance judgment, not from any fault by her. Conditioning access to the retrial on payment would therefore impair the essence of her right of access to a court. The order sought was disproportionate.
3. The court applied the approach in Ford v Labrador [2003] UKPC 41, informed by the principles stated in Aït-Mouhoub v France and later authorities on court fees and access to court. An impecunious claimant may bring otherwise proper and bona fide proceedings while lacking means to pay the defendant’s costs if unsuccessful, as explained in Metalloy Supplies Ltd v MS (UK) Ltd [1997] 1 WLR 1613.
4. The claimant’s failure to pay did not justify refusing to hear her application. Under the approach in JSC BTA Bank v Ablyazov [2012] EWCA Civ 639, as later approved in the same proceedings, refusal to hear a contemnor is exceptional and turns on the interests of justice. The breach here was involuntary and did not impede the course of justice in the claim.
5. The defendant’s application was dismissed. The matter was to be listed for trial.

The judgment records that the Court of Appeal allowed the defendant’s substantive appeal and remitted the claim for retrial: [2016] EWCA Civ 556. Permission to appeal to the Supreme Court was dismissed on 21 December 2016. The present court dismissed the defendant’s application to strike out or stay the claim and directed that the retrial be listed.