Asturion Foundation v Aljawharah Bint Ibrahim Abdulaziz Alibrahim

Permission to appeal is ordinarily refused where the proposed grounds seek to reargue an evaluative assessment of expert evidence, particularly on foreign law, and disclose no real prospect of success or other compelling reason. Subsidiary points expressly identified as obiter do not justify an appeal.

Pending appeal, the court may preserve the status quo where the successful party would suffer little prejudice from a stay but the unsuccessful party could suffer irremediable harm without one. Costs are assessed by reference to the overall balance of success. Failure on fallback arguments does not ordinarily displace the successful party’s entitlement to costs, although reasonable deductions may be made. Interest on costs remains discretionary and may be adjusted to reflect periods of procedural suspension and the time required for detailed assessment.

The claimant Foundation had brought a long-running claim seeking recovery of title to Kenstead Hall, an English property transferred to the defendant by a former Foundation board member. In an earlier judgment, the court found that the transfer fell within the Foundation’s purposes and within the board member’s internal competencies under Liechtenstein law.

The present judgment dealt with permission to appeal, a stay pending any appeal, and consequential costs issues. The court considered the proposed challenge to its evaluation of competing expert evidence, the effect of the pending land action notice, deductions from recoverable costs, payment on account, and pre- and post-judgment interest.

1. Permission to appeal. Permission was refused. The principal issues involved an evaluative assessment of polarised expert evidence on Liechtenstein law. The assessment was closely analogous to findings of fact and concerned a foreign legal system with no parallel in English law. The proposed grounds substantially sought to reargue matters already considered at trial and disclosed no real prospect of success or other compelling reason. The court also noted that not every evidential consideration influencing a judge’s preference need be recorded in detail, applying the approach identified in Perry v Lopag Trust Reg [2023] UKPC 16.
2. The court’s observations concerning section 26 of the Land Registration Act 2002 had been subsidiary and were expressly obiter. They therefore provided no proper basis for an appeal.
3. Stay. A stay was granted until the appeal was concluded. Without a stay, a successful appeal could be rendered practically ineffective if the property were sold or transferred. If the defendant ultimately succeeded, maintaining the status quo caused little apparent prejudice. Any doubt was therefore resolved in favour of preserving the existing position.
4. Costs. The defendant was the overall successful party. The court declined to make the substantial deductions sought for issues on which the defendant had lost or for the valuation exercise. In complex litigation, success on the primary case ordinarily outweighs failure on fallback arguments. A deduction of 15 per cent was nevertheless made for abandoned or unsuccessful points pursued aggressively before trial. A payment on account of 50 per cent of recoverable costs was ordered.
5. Interest. Pre-judgment interest was awarded at 2 per cent above base rate on recoverable costs, excluding the period during which proceedings were suspended. Judgment-debt interest on the disputed balance was postponed for three months to allow the paying party to consider the detailed costs position, following the approach in Richards v Speechly Bircham LLP [2022] EWHC 1512 (Comm), Involnert Management Ltd v Aprilgarage Limited [2015] 2 CLC 405, Marathon Asset Management v Seddon and Others [2017] EWHC 479 (Comm) and Galapagos Bidco v Kebekus and Ors [2023] EWHC 2348 (Ch).