England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE BARLING)

		Royal Courts of Justice Strand London, WC2A 2LL
		14 July 2015

1. LADY JUSTICE GLOSTER: This is an application by the proposed appellant, Mr Mohammad Ghadami, for permission to appeal against a costs order made in the Chancery Division by Barling J on 25 July 2014 following his judgment given on certain applications: one made by Mr Ghadami as claimant in the action, and one by the fourth, fifth, seventh and eighth defendants. The judgment sets out the complicated history of these applications, including reference to the fact that the defendants' solicitors had various correspondence with the court without copying in the claimant to that correspondence.
2. The history of the matter and the way in which the parties behaved was summarised by the judge. He concluded, having recited the history, that the situation as it appeared before him was that the "blame can be fairly allocated between these parties, because the claimant has not pursued his set aside application but has persuaded the court that he would rather carry on with his applications for permission to appeal." He went on to make other comments about the fact that the claimant had complicated matters, and then to criticise the way in which the defendants had behaved.
3. The judge was then addressed as to the costs by counsel then appearing on behalf of Mr Ghadami and by counsel appearing on behalf of the defendants. The judge was told by counsel for Mr Ghadami that he had not seen the correspondence which Healys, solicitors for the defendants, had sent to the court in relation to, in particular, the application for the hearing in private, so the judge was well aware about that. At page 38, in the context of discussion, the judge repeats that clearly various correspondence should have been sent to Mr Ghadami. In what was a complicated case management situation, the judge concluded that he was not going to make any order for costs. This he made no order for costs on either application and referred to the reasons which he had already given in his judgment and to which I have referred.
4. By his application, Mr Ghadami seeks permission to appeal against that costs decision. He also seeks an order that Healys LLP, on behalf of the fourth, fifth, seventh and eighth defendants, disclose to the claimant various documents as requested by the claimant in his letter of 27 July 2014. I have read that letter and it basically seeks copies of letters that Healys sent to the judge or the court which have not been copied to him, an explanation as to why Healys requested the hearing to be heard in private, and copy originals of all responses that Healys had received from the court, judges, masters, deputy masters, clerks, listing office et cetera.
5. After some chasing, Healys responded by email from Mr Johnson dated 12 September 2014 and where the solicitors stated that they were not responding to each and every email sent, not out of disrespect but because the solicitors did not think a response was always necessary and were seeking to prevent their clients from incurring costs unnecessarily. Mr Johnson went on:

"Your requests for correspondence between this firm and the court falls into such a category. You are aware that we wrote in July to the court without copying to you. On reflection, I should not have done that but I do not consider that you have been prejudiced in any way and am not aware that this entitles you to that which you demand. By way of example, we did write to the court to ask for the hearing before a High Court judge to be heard in private..."

And he explains that that was because he wanted to have the right to appear so as to avoid costs and he as a solicitor did not have higher rights of audience so could only appear in private. The solicitor went on to say that he was reluctant to provide Mr Ghadami with anything or engage with Mr Ghadami beyond that which was required because it simply led to the incurring of more costs on behalf of his client.

6. In his application to me on a renewed oral application for permission, Mr Ghadami has referred to this correspondence and to other matters in relation to the history of this matter. He has reiterated his complaints that there was no need to apply for a hearing in private, that certain correspondence was not copied to him which it should have been, and that the judge did not reach a fair result in making no order for costs. Mr Ghadami says that in the circumstances where he was successful in his application before Barling J, he had no alternative but to defend himself and instruct counsel on an emergency basis and he therefore incurred costs. He complains that Healys knowingly brought about a hearing which was unnecessary and could have easily withdrawn but chose not to, and he reiterates submissions that were made to the judge that it was Healys who should face the consequences of wasting the court's time. He refers to other matters in his skeleton argument.
7. I am not prepared to grant permission to appeal in this matter. The exercise by the judge was an exercise of the judge's discretion in relation to a number of case management matters. It is clear that the judge had heard full argument in relation to costs, and I am not satisfied that the judge overlooked anything that was before him. It was obvious to him that there had been a wasted application on the part of the defendants to have the matter heard in private and also that correspondence had been sent by the defendants wrongly without copying the appellant as a litigant in person. These were matters which the judge took into account and I see no prospect of any success on an appeal against what was a case management decision in the exercise of the judge's discretion. The costs involved are some £5,100-odd and in the context of this litigation and the considerable costs that have been incurred to date, there would be in any event no proportionate reason for such an appeal to proceed.
8. Mr Ghadami also makes an application for disclosure, as I have indicated. Again, even if it were appropriate for this court to deal with such an application (which I do not consider that it is since if such an application was going to be made it should have been made to the master) I would refuse it. The information to which the correspondence relates was clearly matters relating to the various applications before the judge. It was not necessary material to be before the judge at the hearing. The judge was in a far better position than this court would be to take a view in the exercise of his discretion as to what the appropriate order for costs should be in all the circumstances. For those reasons, this proposed appeal has no real prospect of success and I dismiss the application.