AC-2024-BHM-000217 - [2025] EWHC 2510 (Admin)

As Mr Khan explained in his witness statement, on 3^rd January 2023, the Interested Party made an application for a liability order against his wife, Mrs Tilat Khan. He appeared before District Judge Watson on 25^th January 2023 who adjourned the case. There was a series of case management hearings which resulted in a final hearing, listed for 29^th May 2024. Mr Khan attended each of those hearings on behalf of his wife.

The Interested Party served a 14-page skeleton argument on the day before the hearing and provided a costs schedule. The Defendant’s acknowledgment of service records that the case was heard by two lay Magistrates, Mr Pantling and Mr Baker.

The point raised by Mr Khan was that his wife was not the owner of 9 Portland Towers in Leicester. Ms Barden, counsel for the Interested Party, argued that the court did not have jurisdiction to hear Mr Khan’s point. Rather, she submitted, it was a matter for the Valuation Tribunal. Mr Khan applied to adjourn, which application the justices declined. The Defendant’s acknowledgement of service records that:

“With the combined effect of Section 16(1) of the 1992 Act; Regulation 57(1) of the 1992 Regulations and the binding judgments of Piggin and Oyston, the Magistrates arrived at an irresistible conclusion that Mrs Tilat Khan could not raise her particular disputes in the Magistrates’ Court as these were enforcement proceedings for liability orders.”

The Defendant’s acknowledgement of service provides the detail of the parties’ arguments and the justices’ reasons for arriving at this conclusion. That decision is no longer in issue in this court, permission having been refused on the papers and after an oral renewal on those grounds. However, I observe that the Defendant’s acknowledgment of service is a carefully drafted response to the claim which addresses the issues which were raised on the claim form in appropriate detail and with care. It was evidently prepared by Mr Altaf Essat who signed each page and gave his position as Legal Advisor to the Defendant.

These facts are not contentious save that during his cross-examination, Mr Khan forcefully explained that Mr Essat was not the court clerk. His evidence was that Mr Essat was not the clerk and he was not the advisor. He was not giving advice to the justices. He had nothing to do with this case. He was just sitting as an observer.

Given that this surprising issue arose for the first time in the cross-examination of Mr Khan, I gave Ms Lean permission to ask a limited scope of additional question of Ms Barden. Ms Barden’s evidence was that Mr Essat was the only legal advisor in court. The reason that she understood Mr Essat to be the legal advisor is that she had sent an email to him, as Legal Advisor, containing a relevant case authority. Mr Khan had been copied into that email. Further, during the hearing, Mr Essat sat where a Magistrates’ Legal Advisor normally sits.

I am sure that Ms Barden is correct. Her evidence was perfectly clear and supported by the fact that she had emailed Mr Essat as legal advisor. Mr Khan’s evidence on this point is unsupported by any material which would corroborate it, and it is a surprising point to raise for the first time during cross-examination. No plausible explanation was offered to support the idea that the person who signed the Defendant’s acknowledgement of service was anybody other that the Legal Advisor who assisted the justices on 29^th May 2024.

As to the costs application, Mr Essat wrote this on the Defendant’s acknowledgment of service:

“A statement of costs in favour of Leicester City Council was served upon Defence Counsel, and upon Mrs Tilat Khan. The total sum being requested was £22,491.80. Every opportunity was given to Defence Counsel to make counter representations regarding the award of these costs in whole or in part, but defence counsel chose to remain silent. The Court further reminded defence counsel if he wished to address any particulars in this claim for costs which would be regarded as unjustified or excessive, but defence counsel still chose to remain silent.

Nonetheless, The Magistrates, in their discretion, still taxed down the claim for costs in favour of Leicester City Council, and only awarded £13,500.00, this sum representing the legal fees incurred by Leicester City Council in appointing counsel representation.”

Mr Essat signed a witness statement dated 30^th April 2025 in which he gave an almost identical account.

The Claimant and Mr Khan dispute this account. The Claimant did not provide a witness statement nor did she give evidence, however Mr Khan filed witness statements. In his first witness statement dated 30^th April 2025, Mr Khan said:

“Before retiring, the justices did not ask me to address them on the issue of costs, and I was not given an opportunity to make representations on behalf of my wife as to whether she should be ordered to pay the Council’s costs or on the amount claimed.

If the justices had asked me to address them, I would have done so, and I would have made representations to challenge the Council’s costs.”

In his second witness statement dated 9^th June 2025 Mr Khan reiterated his case:

“As I mentioned in my First Witness Statement dated 30 April 2025, after the justices made the liability orders, Ms Barden made an application for the Council’s costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024. The Council was seeking costs of the proceedings, in addition to the costs awarded under Regulation 34(7).

After the application was made, the justices retired and there was no time for me to object to the application, and challenge the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024.

After the justices returned to court, they made an order on the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024, and then left the court.

If there had been time, before the hearing ended, to raise objections, that I had not been given an opportunity to make representations on the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024, I would have done so.”

There is a third account, which differs from those given by Mr Essat and Mr Khan. Ms Barden provided a witness statement dated 21^st May 2025 to which she exhibited her attendance note which included this passage:

“I then made an application for the costs of the liability orders on the basis of the schedule, saying that the hearing had been listed for a day, had been on foot for over a year, there had been numerous issues raised by Mr Khan which had made the compilation of evidence more complex than it needed to be, the issues were uncertain and shifting for that reason also, there had been a number of hearings and this hearing had been listed for a day. Mr Khan opposed costs in their entirety.”

Therefore, on the basis of the witness statements from these three witnesses, either:

Mr Anderson was the fourth witness in the case, called on behalf of the Claimant. His witness statement takes this position, which is more nuanced than that of other witnesses:

“My recollection is that Mr Khan was not invited to make any representations as to whether or not his wife should be ordered to pay the Council’s costs or about the amount of those costs. I have not recorded that Mr Khan was invited to make any representations about these matters or that he did so. Had Mr Khan been asked to make such representations, or had he done so, I am confident that I would have made a note of that.”

Given these contrasting positions, I turn now to the contemporaneous documents.

Mr Anderson took a note at Mrs Khan’s request. It is a three-page handwritten note. On costs, it says:

“Apply for Costs – filled yesterday.

£22,490.80 – 3x witness statements

1 x full day

Section 64 magistrates court act – power to make an award of costs. Accepts that civil procedure rules gives court

No application made for costs in the schedule”

Mr Anderson answered questions on his note in a straightforward and neutral manner. He did what he could to help the court. He had noted everything that he heard which was of importance. A lot of time at the hearing was Mr Khan speaking about his side of things. The hearing went on longer than anticipated.

He did not record who was making the points which he recorded, nor any timings by way of noting what happened at what time of the day. He did not record that the Magistrates retired to consider their decision. It was all a bit of a whirlwind.

He did not record the outcome of the justices’ consideration of the costs application. He was confident that it was not announced, but he was confident that he put the key things down in his notes.

He was re-examined on his evidence that “it was a whirlwind”. He explained that the case seemed to wrap up quickly and when asked about the Magistrates’ frustration with Mr Khan, he said that they had a lot less patience than today’s court.

The other contemporaneous note was made by Ms Barden in her blue book. In respect of costs, there is no note that a costs application was made nor any note of what the Legal Advisor, the justices or Mr Khan said, or did not say, in respect of costs. The relevant part of the note records:

“ bench will retire

Returned at 1:17

a lot being asked for

issues not particularly difficult.

involved barristers

£13,500 to cover barrister fees + costs of hearing”

Ms Barden explained that she returned to her chambers and wrote an attendance note in the form of an email to her instructing solicitor. The material part of that email states:

“I then made an application for the costs of the liability orders on the basis of the schedule, saying that the hearing had been listed for a day, had been on foot for over a year, there had been numerous issues raised by Mr Khan which had made the compilation of evidence more complex than it needed to be, the issues were uncertain and shifting for that reason also, there had been a number of hearings and this hearing had been listed for a day. Mr Khan opposed costs in their entirety. The Magistrates awarded £13,500 on the basis that they considered the case was simple and did not justify the costs incurred but that due to Mrs Khan’s conduct there had been a need to engage counsel and so the costs of attendance at the hearings by counsel was justified.”

Mr James put his client’s core case to Ms Barden, namely that Mr Khan did not make any submissions on costs. To that Ms Barden responded:

“With that I cannot agree, you will see my note to my instructing solicitor in which I record that he objected. This was made by me in chambers on return from the hearing. My blue book is not a perfect record. I like to make my notes to solicitors as soon as possible after the hearing. So, what I recall is recorded in the email.”

Mr James asked Ms Barden why she did not record any submissions which Mr Khan made. To that Ms Barden responded:

“It may be that they were very brief. That is as far as I can go. There are all manner of reasons why it may not be perfect. With great respect, I find Mr Khan difficult to follow. I am speculating because I do not recall precisely what happened.”

Though the hearing was fast moving, that does not mean that the hearing was not conducted properly, said Ms Barden. Either Mr Essat was wrong in saying that Mr Khan was silent or her immediate recollection was wrong, she said.

Ms Barden’s evidence was scrupulously fair. She answered each question with a directness which spoke of integrity. On no occasion did she seek to argue the case one way or the other.