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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Wokuri v Kassam [2012] EWHC 2878 (Ch) (15 March 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2012/2878.html
Cite as: [2012] EWHC 2878 (Ch)
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CHANCERY DIVISION
Fetter Lane London EC4A 1NL |
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B e f o r e :
____________________
| DAPHINE WOKURI |
Claimant |
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| -and - |
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| MUMTAZ KASSAM |
Defendant |
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165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
MR MICHAEL BIGGS (Instructed by Hugh Cartwright & Amin Solicitors) appeared on behalf of the Defendant
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Crown Copyright ©
- This is the tail-end of an application. Outstanding is a matter of costs in relation to the issue of the application. The background; I need only go back to an order of Newey J following hearings on 17 January and 30 January, and I believe his order is dated 30 January. One of his orders was that the defendant pay the claimant's costs relating to a certain application to be assessed if not agreed, with an interim payment of £7,500 to be paid by 30 February.
- Slightly late, but nothing turns on this, the relevant sum of money was transferred from the defendant to the bank account with the Habib Bank in the name of the claimant. I have had evidence in relation to this matter from Mr Emezie, who is a solicitor advocate acting for the claimant, which he gives of his own personal knowledge, information and belief, and in competition I have a witness statement from Selma Sacrani of the defendant's solicitors. She says that "All the facts and matters set out in the witness statement are true to the best of my knowledge and belief". She gives no source of her knowledge and belief.
- Materially, Mr Emezie says that the claimant could not have access to the bank account concerned without proof of identification and the only identification suitable was her passport and without that she could not access the money. She accordingly, through her solicitor, asked for her passport back from the defendant's solicitors who had been provided with it pursuant to Mr Justice Nevey's order for forensic handwriting examination.
- The history of the discussion is set out in paragraphs 7, 8 and 9 of his witness statement, which I accept as accurate for the purposes of this application in which it is said that a request was made for the passport to be returned with an undertaking to send it back within 48 hours. This was on 27 February and there were further discussions on 29 February when the request was repeated and the undertaking was again given by the solicitor.
- Following those conversations and notwithstanding that it must have been clear to the representatives of the defendant that the claimant wanted her passport and the reason for it, they wrote back saying that the passport would be retained by them until after the handwriting expert's report had been served, which is due in April.
- Faced with that, what was the claimant to do? She could not get at the money and for one reason or another it was returned back to the payer. Whether that was because it was recalled or because there was some general statement on her account that monies were to be returned does not matter. I do not know why it was returned, but in fact it was returned.
- Even if it had still remained in the account, how was the claimant to access it? She needed her passport. She asked for it. It was refused, so she came to this court, having said she would issue an application with an application that seeks an order that the defendant do forthwith return the claimant's original passport which was disclosed by the claimant pursuant to paragraph 7 of the order. Upon receipt of the passport referred to, the claimant do return the same to the defendant's solicitor by 4pm on 22 March if necessary. So although it was longer than the 48 hours' undertaking, the application made quite clear that the passport was required for a temporary period and the reasons for that are set out in the application notice itself before the statement of truth. That was issued on 7 March. It was dated 7 March; it was stamped and filed on 8 March.
- A banker's draft has now been given for the monies ordered to be paid by Newey J, but that has not yet cleared so it is considerably out of time.
- In my judgment, it was perfectly proper for this application to have been made and the defendant must pay the costs of the application. But what about the costs of today? It is said that it was unnecessary to come here today because the parties should have cooperated and costs would have been dealt with without the need to come to court at all and to instruct counsel.
- That seems to me to be a rather far-fetched submission because there has been no offer to pay any costs. Even before me today there has not been an offer of any sort. There has been the submission that costs might be paid by the defendant. I believe that the claimant was perfectly reasonable to come here today to seek an order for costs. It is said it was not asked for. I do not believe that is right. It is asked for in the application notice itself in paragraph 3.3. There is also on-going correspondence between the solicitors and yesterday there was totally reasonable letter written by Mr Emezie to the other side.
- I have no doubt that the only fair answer to this application is that the defendant should pay all of the costs of this application, including the costs of attendance today. Thank you, gentlemen.
MR JUSTICE WARREN: