Rashpal Samrai and Others v Rajinder Kalia and Others [2025] EWHC 1449 (KB) - Andrew Ratomski, Temple Garden Chambers

15/07/25. Date of judgment: 13 June 2025.

This judgment concerned a number of consequential costs matters following the handing down of judgment in the main claim where the Defendant was the successful party. Martin Spencer J had to consider in particular the mixed claim exception to the Qualified One Way Costs Shifting (“QOCs”) protection afforded to personal injury claimants in a relatively novel set of claims. In the background was also an application for wasted costs issued against the Claimant’s solicitors and counsel resulting in those representatives withdrawing from the case and the Claimant instructing fresh representation.

The costs’ applications

The Judge ordered that costs would be assessed on the indemnity basis in respect of the second, third and fourth Claimants on the basis that their allegations that the Defendant, the leader of the Baba Balak Nath Temple in Coventry, had exploited his position and of financial and sexual abuse had all not been proven and found to be not true. Those findings were plainly sufficient to take the case “out of the norm” justifying an indemnity costs order. The Judge declined to award indemnity costs against the four remaining Claimants.

The claims of the first to fourth Claimants had included claims for personal injury and so by CPR 44.13, the QOCs regime was engaged. No orders for damages or costs had been made in favour of the these Claimants and so CPR 44.14 was not engaged. The Defendant relied on the exception whereby costs orders can be enforced with the permission of the court where a claim is made for the benefit of the claimant other than a claim to which QOCs applies (CPR 44.16(2). It was argued that CPR 44.16(2)(b) should apply to the non-personal injury aspects of the claim. It was submitted that the personal injuries damages accounted for only 5% of the damages claimed and that on a broad brush basis the time and expense of dealing with the non-personal injury aspects of the claim was 60%.

On behalf of the Claimants, it was contended that the case not exceptional and that the other claims were ancillary and this was a personal injury claim in the round with sexual exploitation at the heart of the case. It was also argued that the judgment had not amounted to a vindication of the Defendant’s conduct or credibility, and his categorical denial of a relationship with the first Claimant had been found to be false.

The decision

The Judge held that the case was not in the round a personal injury case such that costs protection would apply to the whole of the first to fourth Claimants’ claims. The judge observed that significant time was spent on cross-examination and submissions regarding the non-personal injury aspects of the claim and indeed three separate claimants had not brought any claims for personal injury. Claims arising from the Defendant’s alleged undue influence were all capable of being clearly separated out within the exception of CPR 44.16(2)(b).

Having satisfied himself that the exception was available, the Judge then considered whether to exercise his discretion to refuse to allow an appropriate proportion of costs be enforced. The Judge held that the Claimants had entered into the litigation “as adults with full knowledge of the risks which such litigation entails” and had been pre-warned of those risks when the Police declined to prosecute the Defendant on the basis that the evidence was insufficient. The Judge also considered the Claimants had increased their jeopardy on account of their conduct pre-trial and during the trial in their evidence. The disparity between each party’s financial position was also not a reason to exercise his discretion to not make the costs order sought.

The Judge then assessed the appropriate proportion of the costs on a broad brush basis to be 40%.

Discussion

This decision is another useful application of the mixed cases test under CPR 44.16. It highlights starkly the risks for claimants pursuing non-personal injury claims alongside a personal injury claim, and suggests that claimants who want to maintain their QOCs protection in the case of an adverse outcome should consider carefully how expansive a case to pursue.

https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1449

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How late is too late? Leadingway Consultants v Ayoub Saab & Anor [2025] EWCA Civ 582 - Andrew Cousins, 7 Harrington Street Chambers

10/07/25. Often in applications for setting aside default judgment and relief from sanctions the court has to consider the question of promptness in the making of the application. In Leadingway Consultants v Ayoub Saab & Anor [2025] EWCA Civ 582 the Court of Appeal was recently faced with a case concerning such applications from two Defendants.

Background

The case arose from alleged breach of an agreement concerning the liquidation of a company in Bermuda.

Proceedings were served personally on the first defendant on 24 March 2022. As no acknowledgment of service or defence had been filed, on 4 August 2022 default judgment was entered. That judgment was served personally on the first defendant on 26 August 2022.

Service on the second defendant took longer, and required various extensions of the validity of the claim form. Following an order permitting service by alternative means, the second defendant was formally served by transmission of the documents via LinkedIn and Facebook and delivery by bailiffs to a partner at a law firm in Cyprus. Service was deemed to have been effected on 30 August 2023. On 18 September 2023 an acknowledgment of service was filed on behalf of the second defendant stating an intention to challenge jurisdiction. Thereafter, extensions of time to file theapplication challenging jurisdiction were agreed. When the second defendant applied for a further extension by application notice dated 13 November 2023, the claimant agreed, but on terms that if the second defendant failed to file a jurisdiction challenge within 21 days of the proposed order, he would be debarred from challenging jurisdiction and from defending the claim.

The second defendant agreed to those terms. On 29 November 2023 the Unless Order in the form agreed between the parties, was made, but the second defendant filed its application one day outside of time.

The position was therefore that the first defendant had waited 16 months to challenge a judgment made against him. The second defendant had been one day late in filing an application for relief from sanctions. In the High Court both defendants were granted relief and the claimant appealed.

The Court of Appeal allowed the appeal against the first defendant, finding that there was no good reason for the judgment not to have been challenged within 16 months that he had waited. The appeal in relation to the second defendant's relief was dismissed as the discretion exercised by the High Court was reasonably within his scope.

Discussion

The case conducts an interesting assessment of how the court should approach defaults of orders and civil procedure rules, where those defaults involve short timescales and more lengthy timescales.

The applicability of the Denton criteria to applications to set aside was considered in FXF v English Karate Federation Ltd [2023] EWCA Civ 891, where the Court of Appeal held that the Denton criteria apply in their full rigour to such applications.

Promptness will always be a factor of considerable significance when considering applications to set aside judgment, and applications for relief from sanctions. If there has been a marked failure to make the application promptly, a court may well be justified in refusing relief. As set out in Standard Bank Plc v Agrinvest International Inc [2010] EWCA Civ 1400, this can be the position even if the the defendant has a good prospect of successfully defending the claim at trial.

It is not to say though that delay will always lead a court to refuse an application to set aside a judgment. As set out in Barons Bridging Finance Plc v Nnadiekwe [2012] EWHC 2817 (Comm), the court allowed a defendant to set aside a judgment entered several years earlier, on the basis that:

• There were very serious conflicts of evidence between the parties, and the defendant alleged that she was the victim of fraud;
• The case had not lain buried since judgment was entered, it had continued for some time. Given the importance of the issue and the facts, justice required that the judgment be set aside.

The guiding principle was set out in Strachan v Gleaner [2005] UKPC 33, where it was stated that there could be no rigid rule to govern the issue, it depended on the facts of the particular case. In Regency Rolls Ltd v Carnall [2000] EWCA Civ 379, the court considered the meaning of the word “promptly”, and held that 30 days was too long a delay before making the application in the particular circumstances.

This has to be contrasted with the decision in Hart Investments v Fidler [2006] EWHC 2857, where the judge concluded that a delay of 59 days in making an application under CPR 13 was “very much at the outer limit of what could possibly be acceptable”.

Conclusion

The question of what constitutes ‘prompt action’ will always be a matter that turns on the facts of each case with no definitive timescale capable of being applied. The Court of Appeal’s decision in Leadingway though is a helpful reminder that if you need relief from sanctions, a delay can imperil the chances of relief being granted.

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Mark Edwards & Ors v 2 Sisters Food Group Limited [2025] EWHC 1312 (KB) - Philip Matthews, Temple Garden Chambers

12/06/25. The case concerns an appeal by four former employees of 2 Sisters Food Group Ltd, who alleged that they contracted Covid-19 due to workplace safety failures in June 2020. The Respondent employer sought and obtained summary judgment in its favour, arguing the Claimants had no realistic prospects of success.

At the initial hearing, the County Court Judge (HHJ Owens) ruled that the Claimants would not be able to establish a causal link between any alleged breach and their illness, largely because Covid-19 was an ‘indivisible injury,’ and exposure could have occurred outside the workplace. The Judge also criticized the claimants for not producing expert evidence earlier and held that proceeding would not be proportionate.

Appeal

Permission to appeal was granted by Pepperall J, following a hearing on 19 December 2024. The following grounds were advanced by the Claimants, in summary: -

1. The judge erred in failing to properly take into account the fact that the Respondent had not provided disclosure and that it was accordingly premature for the appellants to obtain expert evidence, which would be reliant on such documentation.
2. The judge erred in failing to appreciate or have regard to the importance of such documentary, witness or expert evidence as to causation.

High Court Decision

Sir Peter Lane, sitting in the High Court, allowed the appeal. Summary judgment had been ordered prematurely, such that disputed factual issues had been resolved without trial, contrary to established principles: -

It is a trite but nonetheless important point that the summary judgment process is somewhat draconian in nature and should be reserved for those cases where it can readily be ascertained that the requirements of CPR 24.2 are met. Any application for summary judgment is bound to involve some degree of forensic analysis; but the courts have repeatedly warned against conducting what has come to be described as a “mini trial” of the case. [§28]

Lane J underlined that it cannot be a requirement that the existing evidence has itself to show an arguable case, since that would make it unnecessary to consider the impact of potential evidence. It was further noted that it would have been premature for the first-instance court to have formed a view on the ability of an as yet unknown expert to assist the court in resolving the causation issue, particularly when the nature of the evidence was not fully known.

Lane J did not endorse HHJ Owen’s criticism of the Claimant for not commissioning an expert report; in a claim where the costs of an expert were likely to be significant, when set against the likely monetary value of the claim, it was proportionate to proceed as the Claimants had.

Overall, Lane J found that the first-instance court had erred in concluding that the requirements of CPR 24.2(a)(i) were made out: “The Judge could not be satisfied that the appellants had no real prospect of succeeding on the claims. Like Pepperall J, I consider they face an uphill task. But that is not the test.” [§49]

https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1312

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