Masudur Rahman v Dewan Raisul Hassan & Ors

Permission to appeal should be granted where a first appeal has a real prospect of success or there is another compelling reason for it to be heard. A real prospect means a prospect that is not unreal, not a probability of success. Novel legal issues of increasing public importance may provide a compelling reason even without a real prospect of success.

Conditions attached to permission require a compelling reason and remain discretionary. A costs-budget variation requires a significant development in the litigation; ordinary or foreseeable developments do not suffice. Where costs are ordered subject to detailed assessment, a reasonable payment on account should ordinarily be ordered.

The judgment determined consequential matters following the claimant’s successful claim for declarations that specified assets had passed to him by donationes mortis causa. The court considered the scope of the assets covered, applications concerning costs and the costs budget, payment on account, estate expenses, inquiries, interest, joint and several liability, and permission to appeal.

The defendants sought permission to appeal on eight grounds. The central issues were whether grounds concerning indicia of title, intention and dominion had a real prospect of success, whether novel issues concerning registered land and bank accounts supplied a compelling reason for an appeal, and what conditions and costs consequences should follow.

1. Scope of declaration. The declaration concerned only assets specifically pleaded as having passed by donatio mortis causa. The 11 bank accounts in Schedule 3 were not included and would not be covered by the order.
2. Permission to appeal. Under Civil Procedure Rules 1998, rule 52.6, permission required either a real prospect of a successful appeal or some other compelling reason. The real-prospect test means a prospect that is not unreal. Grounds 2–5, concerning indicia of title and whether intention to make a gift was a separate requirement, had a real prospect of success because they raised questions of law. Grounds 1 and 6 concerned factual conclusions that were not rationally insupportable. Ground 7 could not succeed independently. Ground 8 raised novel and important points concerning registered land, online passwords, bank cards and bank accounts, supplying a compelling reason for an appeal. Permission was therefore granted on grounds 2–5 and 8.
3. Conditions. The court could impose conditions only where there was a compelling reason, while retaining a discretion. Permission was conditional on the payment on account of costs being made by the due date. If ground 8 alone was pursued, the defendants had to pay 50% of the claimant’s appeal costs in any event. No condition was imposed requiring payment of first-instance costs or appeal costs for grounds 2–5.
4. Costs and Part 36. The claimant was the successful party overall. His Part 36 offer applied to the non-monetary claim. Rule 36.17(2) gave “more advantageous” and “at least as advantageous” a money-based meaning for money claims, but did not exclude non-monetary claims. The judgment was at least as advantageous as the offer, so indemnity costs and the other consequences under rule 36.17(4) followed from 13 February 2023.
5. Costs budget and payment on account. None of the five developments relied upon was significant for the purposes of rule 3.15A. The variation application was dismissed. A payment on account of 90% of the approved budget, £259,725.29 plus VAT, was ordered within 14 days under rule 44.2(8).
6. Other orders. The claimant’s inquiry was limited to assets given to him. The claim to interest on £650,000 was dismissed, although interest earned on the relevant accounts had to be accounted for. The defendants’ liabilities were joint and several in the circumstances stated. The first and second defendants were in principle entitled to indemnification from the claimant’s assets for expenses and liabilities properly incurred in relation to them.

The judgment followed the court’s reserved trial judgment in the same litigation, [2024] EWHC 1290 (Ch), which determined that the relevant transactions were donationes mortis causa. This judgment dealt with consequential matters and permission to appeal from that decision.