Masudur Rahman v Dewan Raisul Hassan & Ors

A court should not use the consequential-order stage after trial to determine the validity or scope of undertakings, or to give advisory rulings on unargued indemnity issues. Those matters should be resolved when they directly arise, on the relevant facts.

The jurisdiction to revisit an order before sealing exists, but the finality principle carries substantial weight, especially after a full trial. Reopening requires factors which, in combination, overcome that principle. A later submission which does not materially affect the basis for an earlier costs condition is insufficient.

Where permission to appeal is granted conditionally, the prospective appellant must accept the terms or pursue a fresh application to the appellate court. The time for filing an appellant’s notice runs from the lower court’s decision under the Civil Procedure Rules, notwithstanding a possible inconsistency with the applicable practice direction.

The judgment concerned unresolved consequential matters following the trial of a claim relating to alleged donationes mortis causa. The court had previously held that the claim substantially succeeded in [2024] EWHC 1290 (Ch) and had dealt with costs and permission to appeal in a supplementary judgment, [2024] EWHC 2038 (Ch).

The remaining disputes concerned the effect of parties’ undertakings concerning estate assets, conditions attached to permission to appeal, possible deductions and indemnities in the proposed order, the form of permission-related statements, and whether a sealed order was required before lodging an appellant’s notice.

1. Undertakings. The court declined to determine whether the parties’ undertakings were valid or enforceable. The post-trial process for settling the order was not the proper occasion for deciding that previously unargued issue. The undertakings contained carve-outs for agreement and court order. In any event, compliance with an order of a court of competent jurisdiction could not, to that extent, breach an earlier undertaking to the same court.
2. Reopening the order. The jurisdiction to revisit an order before sealing was recognised under Re L and B (Children) and Re Barrell Enterprises Ltd. Applying the guidance in AIC Ltd v Federal Airports Authority of Nigeria, the court treated finality as carrying particular weight following a full trial. The defendants had not shown factors sufficient to overcome that principle. The claimant’s position on the undertakings did not necessarily undermine his earlier evidence of impecuniosity, and, in any event, did not improve his financial position. The payment-on-account condition had been imposed principally because of enforcement risks against non-resident defendants without apparent UK assets. The additional condition on ground 8 reflected its public-interest basis and the absence of a real prospect of success.
3. Indemnities and deductions. The court declined to state in the order what the law was on unargued deductions or indemnities. Those issues could be raised and determined when the accounts were taken, on the amounts and facts then established.
4. Permission and appeal timing. Under rule 52.3(3) of the Civil Procedure Rules 1998, the order should contain the statements concerning a further application for permission to appeal. Following R (Medical Justice) v Home Secretary, conditional permission required an election between accepting the conditions and making a fresh application.
5. Sealed order. Rule 52.12(2) referred to the date of the lower court’s decision, not the date of a sealed order. Practice Direction 52C paragraph 3(4)(a) appeared potentially inconsistent by requiring a sealed order or other determination. The issue did not arise for decision because the sealed order was expected before the extended filing deadline.

This was a first-instance consequential judgment following the substantive trial judgment in [2024] EWHC 1290 (Ch) and supplementary judgment in [2024] EWHC 2038 (Ch). Permission to appeal had been granted on specified grounds subject to conditions, which remained in force.