Ashok Kapoor v Baltaj Johal

Where an order is silent as to costs, the general rule under Civil Procedure Rules 1998, r 44.10(1)(a), is that no party is entitled to costs in relation to that order. The exceptions for costs recoverable from a fund held by a personal representative, deemed costs on certain without-notice applications, and variation of deemed costs orders must be applied according to their terms. They do not permit a party to obtain costs of the whole appeal through a later freestanding application. An order for costs cannot ordinarily be made against a person who was not a party. Where costs were reserved by an earlier order, however, the court may assess and direct payment of those costs, but the order must be made against the appropriate party or estate.

The appeal arose from long-running boundary and damages litigation. The damages claim and the related appeal had been struck out after procedural failures following the death of the original claimant, Madhu Kapoor. Her brother, Ashok Kapoor, was later appointed representative of her estate.

HHJ Lethem subsequently ordered the estate to pay the respondent’s costs of the appeal and ordered Ashok Kapoor personally to pay costs reserved on an earlier application. The issues were whether the earlier orders, which were silent as to costs, left jurisdiction to make a later costs order, and whether the reserved costs could properly be ordered against Ashok Kapoor personally.

1. Costs of the appeal. The appeal was allowed in respect of paragraphs 2 and 3 of HHJ Lethem’s order. Under Civil Procedure Rules 1998, r 44.10(1)(a), an order which does not mention costs gives no party an entitlement to costs, subject to the specified exceptions. The orders of 4 February 2021 and 7 April 2021 were both silent as to costs. The respondent had neither sought variation nor appealed the absence of a costs provision.
2. Exceptions. Rule 44.10(1)(b) did not assist because the respondent did not hold the relevant fund as trustee or personal representative. Rule 44.10(2)(c) concerned the costs of an order or direction sought without notice, not the costs of the whole appeal. In any event, the relevant orders were not orders sought by the respondent on without-notice applications, and no deemed costs order arose. Rule 44.10(3) therefore could not apply. Griffiths v Commissioner of Police for the Metropolis [2003] EWCA Civ 313 remained applicable notwithstanding the earlier form of the rule.
3. Practice Direction 52B did not provide an alternative route. Paragraph 7.3 concerned applications determined without a hearing, and paragraph 7.4 required an application to vary within seven days. Neither condition was satisfied. The respondent’s later costs application was freestanding, not an application to vary the earlier orders.
4. Reserved costs. Paragraph 4 of the order could be varied because the costs had been reserved on 6 January 2022. Rule 44.10 did not apply to that order. The parties accepted that Ashok Kapoor was not then a party and could not personally be ordered to pay costs. The order was therefore varied so that the estate of Madhu Kapoor was liable for the assessed sum of £3,855.
5. The court did not determine the alternative challenge based on conduct and proportionality. It observed obiter that, had jurisdiction existed, the costs order would probably have been reasonably open to the judge, despite mitigating circumstances and defaults by both sides.

• High Court (King’s Bench Division): appeal from the Central London County Court allowed in part. Paragraphs 2 and 3 of the order dated 19 May 2022 were set aside, and paragraph 4 was varied so that the estate, rather than Ashok Kapoor personally, was liable for the reserved costs.