CH-2025-000032 - [2025] EWHC 2988 (Ch)

In handing down this judgment in draft I invited the parties to seek to agree a Minute of Order to give effect to my judgment. That process resulted in a number of issues on which the parties could not agree but which Counsel invited me to deal with on the papers in the light of their further submissions helpfully set out in emails to me.

The first issue is as to the incidence of costs. Mr Karim formally asks, on behalf of his client, that the court adjudicate on the principle of the incidence of costs.

As regards the costs of and incidental to the appeal itself, there seems to me no reason why costs should not follow the event in the usual way. Mr Karim does not identify any reason why such order should not be made and accordingly I make it. I note that Prudential only succeeded on two of the four grounds of appeal but those two grounds took up little time and were not decisive as determined either way. The fact that a party does not win on all issues that they have raised does not mean that they should not obtain an order for all their costs and on the facts of this case, I consider that, as I have said, costs should follow the event.

As regards the costs below, Mr Karim submits that there was no order made as to the costs by Mr Recorder Kelly KC and that it would be procedurally improper for any order now to encompass the costs incurred below, especially when the claimant was successful at that hearing.

As pointed out by Mr Steadman, the Judge below reserved the relevant costs.

In my judgment the order below should be set aside in its entirety, including the costs element. Even if it was not so set aside, the effect would be that the costs of the proceedings would be paid by Mr Dewji because the costs would, unless further considered, be costs in the case and the result of my judgment is that that the case has ended in judgment for the Defendant.

However, considering the matter afresh, both the costs of the hearing below and the proceedings themselves should, in my judgment, be paid by Mr Dewji and I so order. As regards the costs of the proceedings, the follows from the general principle that the costs follow the event. As regards the hearing below, although Mr Dewji won on that hearing, the decision then made has been found by me to be wrong. There are in my judgment no special factors that would make it appropriate that Mr Dewji receive the costs of the hearing below or that there be no order as to costs. Accordingly, I order that Mr Dewji pay the costs of the proceedings, including for the avoidance of doubt, the costs of the hearing before Mr Recorder Kelly KC.

The next issue is as to the basis of assessment. Mr Steadman relies upon offers made by Prudential in the course of the litigation which are not CPR Part 36 offers (see CPR r44.2(4)). The offers in question were made on 2 April 2024 when, having made its strike out application, Prudential offered to pay £5,016.80 (then then value of his pleaded claim) and on 30 September 2025, when Prudential offered to pay £10,500 to Mr Dewji. Mr Steadman submits that costs should be ordered on the indemnity basis either in whole or after either of the two dates in question.

Mr Karim says that there is no relevant conduct of Mr Dewji taking the case out of the norm, the costs offers were not Part 36 offers to which indemnity assessment rules are capable of applying, that the hearing before the Recorder was reasonable and that the second offer was very late in the day.

In my judgment, there is nothing taking this case out of the norm. The first offer, as an offer giving everything that Mr Dewji was claiming, was overtaken by the Amended Particulars of Claim. The second offer was late in the day when large parts of the appeal costs had been, or would have expected to have been, incurred. It was not unreasonable to fight the appeal, as Mr Dewji had won at first instance. Accordingly, I order that costs will be awarded on the standard basis.

The next issue is one as to assessment. The parties have agreed that the costs should be assessed if not agreed rather than being subject to summary assessment by me. I agree that that is appropriate given that the costs of the hearing below probably cannot be assessed by me but that, even if they can, the costs of the proceedings will need to be assessed in any event.

It is accepted that a payment on account should be ordered but there is a dispute as to whether the sum to be ordered should be £20,000 or some lesser sum (possibly £10,000).

The appellant’s costs schedules before me indicate costs of £10,785 (counsel £10,500 and court fee £285) for the hearing before me and £26,841.75 (counsel: advice conference/documents: £11,841.67; counsel fee for hearing £15,000). Both these figures are ex vat. VAT is claimed on the costs schedule for the hearing before the Judge and no VAT is claimed on the costs schedule for the hearing before me. For present purposes I ignore any VAT claim. As regards solicitors’ costs, these were not claimed in the costs schedules but are said to be at least £10,000. This is an assertion not backed up by any certified costs schedule.

In my judgment the appropriate quantum of any payment on account is £20,000 as sought by Prudential and I so order. That sum is substantially below the costs claimed for counsel (and the court fee) alone and only just over 50% of that sum (53% or so).