IMRAN ARIF v DALBIR SINGH SANGER

When allocating appeal costs, the court may make a broad-brush order reflecting the overall justice of the case and the parties’ relative success. It need not conduct a mini detailed assessment. A single discounted costs order may be preferable where it avoids unnecessary assessment expenditure.

An interim payment on account should reflect the likely recovery after detailed assessment, with an appropriate margin for error and regard to the risks of appeal and recovery. Enforcement may be stayed where immediate payment could create injustice, particularly if recovery of overpaid sums may be difficult. A case-management issue which has not been properly argued may be remitted for determination at a case management conference.

Following judgment on the Defendant’s appeal and the Claimant’s cross-appeal, the court received written submissions on costs and consequential matters.

The Claimant had been substantially successful below. The Defendant had resisted the cross-appeal and some issues in the respondent’s notice. The parties disagreed about the appropriate costs allocation, the amount of any payment on account, stays of enforcement, and whether limitation should be tried as a preliminary issue or at a full trial.

1. Costs. The court exercised its power under Civil Procedure Rules 1998, rule 44.2, to reflect the parties’ overall success. A broad-brush assessment was appropriate and a mini detailed assessment was neither necessary nor practicable. A single order was more convenient and might reduce detailed-assessment expenditure. The Defendant’s limited success was reflected by ordering payment of 75% of the Claimant’s overall costs.
2. Payment on account. Having regard to the factors mentioned in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), the court estimated the likely sum recoverable after detailed assessment, allowed a margin for error, and considered the possibility of a successful appeal and difficulty recovering any overpayment. An interim payment of £32,436, representing 60% of the assessed provisional figure, was ordered.
3. Stays. Stays of enforcement were continued pending determination of the Defendant’s application for permission to appeal. Although the Claimant was being kept out of his money, the selective information available about his assets and liabilities meant that enforcement could cause injustice if the appeal succeeded. Payments into court provided a fairer protection for the Claimant’s interests. If permission was refused, the stays would be lifted; any further stay after permission would be for the Court of Appeal.
4. Case management. The question whether limitation should be tried as a preliminary issue had not been argued adequately. It was remitted to the Senior Master for decision at an agreed CCMC, whose listing was to await the permission application.

• High Court (Queen’s Bench Division): Following the court’s judgment of 21 December 2021 on the Defendant’s appeal and the Claimant’s cross-appeal, consequential costs and case-management matters were determined in this judgment.