Case No: A2/2007/1508
Neutral Citation Number: [2008] EWCA Civ 1326
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE EADY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 3rd October 2008

Before:

LORD JUSTICE RIX
LADY JUSTICE SMITH
and
LORD JUSTICE GOLDRING

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	HOSSAIN & ORS
	
Appellant 	
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SONALI BANK & ANR	

Respondent	

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THE APPELLANT APPEARED IN PERSON.

Mr S Jones (instructed by Holman Fenwick and Willan) appeared on behalf of the Respondent.

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Judgment

See also Post-Judgment Discussion & Costs Order after paragraph 30.

Lord Justice Rix:

1.	This is an application for permission to appeal made by Mr Hossain from the judgment of Eady J given on 19 June 2007.  The context of this application concerns the application of the doctrine of abuse of process which derives originally from the famous case of Henderson v Henderson (1843) 3 Hare 100, as reinterpreted more recently by the House of Lords in Johnson v Gore Wood [2002] 2 AC 1.  

2.	The litigation with which we are concerned in this case goes back a long way.  It goes back to a case brought before the employment tribunal sitting at Stratford in 2001.  The litigation before that tribunal, whose decision following lengthy oral hearings was promulgated on 14 December 2001, concerned various claims brought against Sonali Bank and Sonali Trade and Finance UK Ltd by ex-employees of those companies (which I will refer to, compendiously, as “the Bank”) who had worked for the Bank in its operations here in the United Kingdom.  The cases brought before the tribunal were effectively test cases.  About 24 cases were before the tribunal, of which I think eight represented the particular problem which arises on this application, but, whatever be the right number, they were themselves only test cases for other employees in the background.  Because those cases were test cases they were deliberated on with the help, so far as Mr Hossain is concerned, of leading counsel Mr Millard QC and, as I have said, were conducted over a considerable number of days.

3.	Amongst the claims brought before the tribunal was one spearheaded by Mr Hossain in his case concerning lump sum pension entitlement.  Essentially, the question was: what was the pay to which a formula had to be applied, where the formula can be referred to as the multiplicator, so as to derive a lump sum payment in lieu of monthly payments during the pensioner’s lifetime?  The formula was not in dispute; it derived from service regulations produced pursuant to Bangladeshi statutes, because the Bank was a bank based, ultimately, in Bangladesh.  The question was: what was the amount of the final pay to which that formula, that multiplicator, had to be applied?  

4.	The issue before the tribunal between Mr Hossain and the Bank was essentially as follows.  The Bank said that the only pay relevant as the multiplicand was something called “basic pay” or, in Bengali, the “mul bethon”.  Mr Hossain submitted, however, that in addition to his basic pay a personal protected pay also had to be taken into account.  He therefore submitted that there had been an unlawful deduction from what he was entitled to in the sum of ₤1,440.  That was the pleaded issue before the tribunal.  That pleaded issue was the subject of careful particulars and submissions, which referred to a number of Bangladeshi legal documents such as the Sonali Bank Employee Service Regulations 1981, a memorandum of 2 September 1966 and a circular dated 21 September 1989.  

5.	An important basis for Mr Hossain’s case before the tribunal was the 1966 memorandum, which defined emoluments as meaning the emoluments which government servants -- because the 1966 memorandum covered all government servants, not only employees of the Bank -- were receiving immediately before their retirement, including (and then five specific matters were stated in subparagraphs (a) to (e)) (namely, to mention them briefly): pay (as further defined); special pay (as further defined); technical pay; personal pay; and 

“(e) any other emoluments which may specifically be declared as emoluments reckoning for pension.”

6.	On the basis inter alia of the 1966 memorandum, Mr Hossain’s issue with the Bank was that he was entitled to the fourth of those items which I have just mentioned, namely personal pay, in addition to his basic pay.  There was no pleaded case that there were “any other emoluments” which had specifically been declared as emoluments reckoning for pension.  So far as that issue was concerned, the tribunal found in favour of Mr Hossain.  In particular, the tribunal said:  

“43. For much of this case, the respondent [that is the Bank] based its defence to this claim on the assertion that by virtue of Regulation 52(3) of the 1995 Regulations, basic pay, or mul bethon, was the proper basis of the calculation.  After the cross-examination of Mr Latif, the Deputy General Manager of the Bank called by the respondent, the respondent conceded that Regulation 52(3) did not bear one way or the other on the question of how final pay was to be determined for the purposes of the pension scheme.  The respondent has therefore abandoned what appeared to be their defence in reliance on Regulation 52(3).  Rather late in the day, they placed reliance instead upon a worked example pension calculation prepared by the respondent’s head office, where basic pay, mul bethon, has been used as the basis for the calculation.  The respondent maintains that that method of calculation is correct, and placed reliance upon that worked calculation.

44. We have been conducted, by the industry of Mr Miller, in an enormously complicated paper trail through documents over the years, in an effort to convince us that the personal protected element of Mr Hossain’s pay, and that of the seven others, should have been included as the basis for calculation of the pension lump sum.

45. At the end of that trail, with the assistance of a signpost called emoluments, and the meaning of that word, we are convinced that the personal protected pay element of Mr Hossain and the relevant applicants should have been included in the calculation of their pension lump sum, and was not included.  We have concluded that, for the OPTI home-based persons concerned, who had personal protected elements of their pay on absorption, the calculation based on the TAKA sum, mul bethon, was incorrect.  The worked example put before us by Mr Jones as an indication to the contrary is not convincing.”

Therefore, on that point they found in favour of the pleaded case, the essential case made before the tribunal, of Mr Hossain.

7.	It is necessary to point out that at a late stage, or at any rate during the course of that tribunal hearing, it occurred to Mr Hossain that his case may have been put too narrowly, because on 31 May 2001 he wrote a letter to his solicitors in which he referred to the concept of emoluments as a general description of pay and, in that context, to a further document emanating from the Bank, a circular of 21 September 1989, which set out the pension formula as being a formula to be applied to “Emoluments for Pension”, a document in Bengali in which the word emoluments is the only word in English in the original Bengali document.  We also have a translation of that document, as did the tribunal below.  On the basis of that document, Mr Hossain brought to the attention of his lawyers the possibility that the right way to put his case was not so much an issue as to whether the personal protected pay element should figure as part of the basis for the application of the pension formula, but that the whole of his pay drawn immediately before retirement should be so considered.  

8.	In his very candid submissions before this court, and indeed before the judge below, Mr Hossain has accepted, and the court below had part of the transcript of the proceedings to help it as well, that there was some discussion not only between him and his legal advisors but also between Mr Millard, his leading counsel, and the tribunal about the possibility of an amendment to his claim.  It may be -- we have not been shown the transcript -- that Mr Hossain is right to say that the tribunal expressed itself doubtfully about the likelihood of an application to amend being successful, at what was then a late stage of the proceedings.  Be that as it may, the judge, Eady J, himself states that:

“According to a note I have seen, it would seem that Mr Millard was asked by the Chairman whether he was seeking at that late stage to make an amendment in that regard, and he responded that he was not.”

We have been shown nothing by Mr Hossain today to suggest that that is not an accurate account of that incident in the proceedings.

9.	So the question of an amendment to put his case more broadly was considered between Mr Hossain and his legal advisors; it was also a matter raised in front of the tribunal.  The tribunal asked whether Mr Millard wanted to amend the pleaded case; he said that he did not want to amend.  What he did, and this appears to have been as it were the tactics decided upon within the claimant’s camp, was to put his case in formal written submissions in the following way:

“54. It has emerged in the course of the hearing that R [that must be the Bank, ‘R’ standing for ‘respondent’] considers that all of the sums received by its UK optee staff each month (basic pay, protected pay and allowances) to be part and parcel of their net ‘salary’ [see 1.282] or ‘take home pay’ [see especially the evidence of Mr Latif on day 8 am when cross-examined about 1.282].  The claim as pleaded and articulated in evidence by MMNH [that is Mr Hossain] is, however, limited to basic plus protected pay (see the ‘other allow’ column at 2.282 for the eight of the [applicant’s] ‘final pay’ for pension purposes).

55. Accordingly the ET is invited to consider whether the reality of the [applicant’s] employment in the UK requires that the phrases covering ‘final’ pay for pension purposes be construed so as to cover not only protected/personal pay but this full final monthly pay.  Those acting for A and the union are concerned to ensure that guidance capable of resolving all the [applicant’s] emoluments is obtained from the ET’s decision.  If this point is not considered (but merely the claim as pleaded) this may not occur.”

As far as the tribunal is concerned, they did not refer further in their decision to that invitation, but simply decided the pleaded case before them.

10.	What happened thereafter was that there was an appeal to the Employment Appeal Tribunal, in which it was submitted that the employment tribunal had been wrong to decide the case on the pleaded case, which had been specifically addressed and affirmed in those closing submissions of Mr Millard, rather than on the broader ground which they were invited to have regard to in that passage of the final submissions.  It was submitted that there was an error of law in their failure to adopt that invitation.  It was submitted that they had failed to take into account that the Bank’s witness, Mr Latif, to whom reference was made in paragraph 54 of the cited closing submission of Mr Millard, had in fact conceded a case that every element of the salary should have been taken into account for the purposes of the pension payment.  However, the Employment Appeal Tribunal disagreed that there had been any such concession on the part of Mr Latif.  All that he was conceding was that “salary” referred to the salary table of home-based employees of the Bank.  So that appeal to the Employment Appeal Tribunal failed, and there was no further appeal.

11.	In his frank submission before us, Mr Hossain has in effect accepted that part of the calculation in the closing stages of the hearing before the employment tribunal was a fear that if a formal application to amend was made, it would be refused, and that therefore a better way of proceeding would be in the way that it was done; that is to say, by standing on the pleaded case but inviting the tribunal to take a broader account of the matter, with the possibility that if that did not assist Mr Hossain and the other claimants before the employment tribunal, or even on appeal before the Employment Appeal Tribunal, then there would or might be the opportunity within six years of the relevant date to bring proceedings in the High Court, not for the statutory cause of action of unlawful deduction, but for the general common law claim of breach of contract.  

12.	That is in effect what happened, because after a period of nearly two years from the handing down of the judgment of the Employment Appeal Tribunal, which was promulgated on 7 October 2003, the present proceedings of Mr Hossain were brought in the High Court on 28 June 2005.  That claim, on behalf of him and other claimants, sought to put the lump sum pension payment on a much broader ground, which would have meant -- in the case of Mr Hossain, for example -- that instead of a pension gratuity of some ₤16,000, a total gratuity of some ₤193,000 should have been paid, so that the complaint was of an underpayment of some ₤177,000.  

13.	It is a detail of the new way in which the case was put that the difference between the amounts in question, that is to say the amount awarded by the employment tribunal and the amount now claimed in the High Court proceedings, reflected two allowances which formed part of Mr Hossain’s pay package, called “foreign and housing allowances”.  As part of their Particulars of Claim in the High Court it was pleaded, because it was recognised that some explanation would have to be given as to why this matter was being revisited in these further proceedings, it was pleaded that Mr Hossain and the other claimants had been prevented from understanding the full ramifications of their entitlement by late disclosure of the Bank during the employment tribunal proceedings, and reliance was also again made on Mr Latif’s alleged concession.  It was also pleaded that when the employment tribunal rejected the Bank’s case that the only item to be taken into account was the mul bethon, or basic pay, the employment tribunal had decided an issue estoppel point in their favour, the effect of which ought to have been that the claimants were awarded a pension sum based upon all their emoluments, and not only based upon their personal pay allowance in addition to that of basic pay.

14.	The effect of starting those further proceedings was that there was then an application to strike out this new claim for abuse of process, in reliance upon Johnson v Gore Wood, and the matter came originally before Master Foster, who on 11 May 2006 gave judgment in favour of the Bank against Mr Hossain and the other claimants.  Master Foster set out in full the now famous passage from Lord Bingham’s speech in Johnson v Gore Wood in which he reanalyses the Henderson v Henderson doctrine as a doctrine concerned with abuse of process, and concludes in this passage: 

“It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

15.	The Master dealt with the submission that the 1989 memo to which I referred had been disclosed late, and too late to enable the claimants to put their case in order.  But as the Master in my judgment rightly said, the significance of the 1989 document was that it referred to emoluments, but that was language which Mr Hossain had always focused on and went back to his earlier Particulars.  The Master also rightly said that the 1989 document made no specific reference as to the allowances in question or to any particular allowances as being included in emoluments.  The language of the document which I have cited earlier speaks about emoluments for pension, and so the Master was satisfied that the claimants were not adversely affected in the way they were able to put their case.  The Master also concluded, and this is now really common ground and the basis for Mr Hossain’s submissions to this court, that it was a deliberate decision of the claimants not to seek an amendment.  

16.	That was the Master’s decision, and the matter then proceeded on appeal to Eady J.  In a full and detailed reserved judgment given by that judge on 19 June 2007, after a hearing on 8 June, the judge went through the matters in detail, considered carefully Johnson v Gore Wood, considered the essential underlying documents such as the 1989 document, and mentioned that the so-called concession made by Mr Latif was a matter no longer pursued, but concluded that on the facts of the case and in the light of the matters to which I have referred in setting out those facts, the effect of Lord Bingham’s broad merits-based approach was that if the claim that Mr Hossain now wanted to present to the court could have been presented to the tribunal, that it should have been.  Not only that it should have been, but that it should have been presented in circumstances which on Lord Bingham’s broad-based merits approach would amount to an abuse of process such as would require the upholding of the Master’s decision to strike out the claim, and that is what the judge did.

17.	Now Mr Hussein’s application to this court for permission to appeal has been adjourned to this court on notice by the order of Jacob LJ, and we have before us a very detailed written skeleton argument from Mr Hossain, which he has supported this morning with his oral submissions and with the help of the documents that he has put before us in two well-prepared files.  The essence of his submission to us has, in effect, changed.  Although there were passing references in his submissions to the late disclosure of the 1989 document, Mr Hossain accepts, as he has done in his frank submissions before us, that the way he now puts the case does not depend upon the late disclosure of that 1989 document; and indeed, he has been able to say nothing about that document to undermine in any way the, in my judgment, correct approach to that document of Master Foster.  Nor has he relied upon the concession of Mr Latif; nor has he blamed his lawyers before the tribunal or the Employment Appeal Tribunal.  

18.	What he has said, in effect, to us is that his case has overwhelming merits.  He has, in effect, made the submission that his case is a very simple one. It is not concerned with Bangladesh documents; it is not concerned, in essence, with Bangladesh law, statute, regulations or pension provisions; it is concerned with a very simple matter of English law.  Namely, what was his final take-home pay in total; those are his emoluments; that is what emoluments means under English law; he need only refer to any Bangladesh documents simply for the purposes of referring to the reference to emoluments for pension in the 1989 document.  The simple question is: what under English law were his final take-home pay emoluments?  And he says they made up his total pay.  

19.	This is supported, he submits, by looking right back to the beginning of his work with the Bank in 1974, when his terms of employment set out in an exchange of letters with the Bank refers simply to a total take-home pay, then of some ₤1,800 a year, and after 25 years, he said that ₤1,800 had become tens of thousands of pounds, and that is what his final emolument was.  He effectively accepts that that is a case that he could always have made, but he submits that the new way in which he puts his case has such overwhelming merit, and the importance of his pension is so important to him, and the justice of his case for that pension after 25 years’ work for the Bank is such that applying the broad-based merits judgment of Lord Bingham, or similar words of Lord Millett in the Johnson case, this court should, in effect, do a little wrong to do a greater right by granting him permission to appeal and allowing the appeal, and allowing his claim to go forward.  Mr Hossain has argued the matter very attractively, and if it be the case, and of course we have only heard Mr Hossain on this matter, that he is right in his submissions about his pension entitlement, it is indeed a very sad matter that he should not receive that pension entitlement.  

20.	Nevertheless, I do not find it possible to adopt Mr Hossain’s approach to the case.  I do not accept that one can simply ignore the question of abuse of process, and all the factors which go into that question, simply on the basis of a submission that a case as now put has overwhelming merit.  That question has been addressed recently in a decision of this court, Stuart v Goldberg Linde  [2008] EWCA Civ 2, [2008] 1 WLR 823.  There, similarly, a claim was lost; a new claim was brought; there was an application to strike out for abuse of process; and an issue before the court was whether the test of abuse of process in Johnson v Gore Wood allowed the court to put primary attention upon the alleged merits of the case.  As to that Lloyd LJ, with whom Sedley LJ agreed, and with whom Sir Anthony Clarke, MR, also agreed in the relevant respect, although in other respects expressing himself slightly differently in his own terms, said this at paragraph 57 about the matter of prospects of success: 

“57.  Given Lord Bingham's emphasis [[2002] 2 AC 131] on the need for the court to avoid adopting ‘too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court’, it is necessary to proceed with care in relation to a contention that some aspect of a particular case must be disregarded as irrelevant in principle. However, it seems to me that it would at most only be in an extreme case (either way) that the merits, in the sense of prospects of success, of the second proceedings can be relevant to deciding whether bringing it separately is an abuse of process. If the case can be shown to be cast-iron, so that judgment could be obtained for the claimant under Part 24, this might perhaps outweigh factors suggesting that the case ought to have been brought as part of the earlier proceedings. If, on the other hand, the case is hopeless, then it may be capable of being struck out for that reason in any event. But if (as here) the prospects of success are uncertain, but the case is not suitable for summary judgment for either party under Part 24, then it seems to me that it is inappropriate to attempt to weigh the prospects of success in the balance in deciding whether it is an abuse of the process to bring the claim in later proceedings, rather than as part of the earlier proceedings. In my judgment, when Lord Bingham spoke of a ‘broad, merits based approach’, the merits he had in mind were not the substantive merits, or otherwise, of the actual claim, but those relevant to the question whether the claimant could or should have brought his claim as part of the earlier proceedings. A defendant may feel harassed by having brought against him what appears to be a weak claim, but that factor should not count in this context. Whether the claim appears to be weak or strong, it is the fact of it being brought as a second claim, where the issue could have been raised as part of or together with the first claim, that may constitute the abuse.”

I agree with those observations.

21.	The fact of the matter is that despite Mr Hossain’s skilful written and oral submissions, the case which he seeks to make before us and which he describes as an overwhelming case, is an entirely new case, on which we have only heard his side.  The fact is that whether his employment contract was governed by English law or not, and whether or not English employment statutory law applies in any event to his work here, the question of the relevance of Bangladeshi law and Bangladeshi documents to the question of his pension entitlement is, to my mind, a rather obscure matter.  Before the tribunal, and at all times before his submission to this court, Mr Hossain has in effect been prepared to take his stand on the basis of Bangladeshi documents; originating in statute, then going to regulations, and ultimately ending up in circulars, relating to a pension arrangement which is essentially a pension as a government employee, a pension provided by the government, ultimately provided by the government of Bangladesh through the Bank.

22.	But Mr Hossain’s new submissions raise considerations which have not been considered by any court before today, and I am very far from being able to regard Mr Hossain’s claim as one of overwhelming merit, whatever might be the apparent virtue of the claim looked at simply as if it were a matter of English law.  The position is that, given the way in which Mr Hossain now puts his claim, it must always have been obvious to him and his legal advisors that his final take-home pay was what he asserts it to be.  For some reason, which we are not in a position to get to the bottom of, the case was not presented in that way.  Even when the point was specifically considered during the course of the proceedings before the tribunal as to whether the claim should be reformulated, it was decided that it would be in effect too dangerous to the other aspects of Mr Hossain’s claim to seek to put it in a new way.  

23.	In those circumstances, against that background, it would be impossible in my judgment for this court to agree with Mr Hossain’s submission of overwhelming merits.  In any event one must come back, as Stuart v Goldberg Linde emphasises, to the broad merits-based judgment concerning the essential facts relating to this litigation.  Those facts are, and I have set them out in greater length before, that the very issue which Mr Hossain now seeks to raise on a broader scale, namely the issue of what his relevant pay was for the purposes of the expression “emoluments”, for the purposes of applying the pension formula of the Bank, was the issue before the tribunal.  The way Mr Hossain seeks to put the case is only another way, a broader way admittedly, of putting the same issue: what was his pay for the purposes of the pension formula?  He took his stand on inter alia the 1966 document, which referred to emoluments specifically accepted for pension purposes; he always knew there were elements to his pay, his foreign and housing allowances, which arguably might have been emoluments specifically accepted for pension purposes; he did not seek to put that case.  He had an opportunity to amend his case, to put it more broadly; he was given that opportunity by the tribunal; it was an opportunity he did not take.  He chose to put it in a way which was specifically accepted by his leading counsel in his final submissions to be not the pleaded way, but nevertheless a matter which was left for the tribunal to consider if they thought fit.  They did not think it fit.  The matter was revisited again at length before the Employment Appeal Tribunal; there was no appeal from their decision.  

24.	The matter has been considered now by Master Foster and by Eady J, and now in this judgment by me.  It is impossible, in my judgment, to go behind the fact that the way in which Mr Hossain now seeks to put the case was a way in which he always could have put the case; was a way in which he contemplated, with the help of his legal advisors not to put the case; and a way in which, years later, he seeks to put his case in the High Court rather than before the employment tribunal.  The employment tribunal were always in a position to allow an amendment to extend time for a claim which, in the way in which it was put as a wrongful deduction, could be a claim of an unlimited amount.  But although Mr Hossain had taken his claims in general before that tribunal, he was not willing to leave the way he now wishes to put the claim to them.

25.	Finally I refer, as Mr Hossain referred, to a passage in Lord Millett’s judgment in Johnson v Gore Wood where Lord Millett says at page 59C and following:

“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

However, in my judgment this is not a case of refusing to allow a party the opportunity of litigating for the first time a question which has not been previously adjudicated upon.  The issue of how much Mr Hossain’s pay was for the purposes of applying the formula was the very issue which was being adjudicated upon before the employment tribunal.  To the extent that Mr Hossain wanted to broaden the way that issue was being litigated before that tribunal, he had the opportunity to do so by amending his pleading, but he did not seek to take that opportunity.  

26.	In all the circumstances, I do consider that this new claim is an abuse of process; it is unfair to relitigate again a claim which has already been litigated in the circumstances to which I have drawn attention.  Mr Hossain’s bottom line is to invite this court to do a little wrong for a greater right.  Perhaps, if Mr Hossain’s submissions about the merits are right, it would be for the purpose of doing right in that respect by Mr Hossain and the other applicants, I accept that; but it would be not for the purpose of doing a little wrong, but for the purpose of doing a still greater wrong, because the doctrine of abuse of process as explained in Johnson v Gore Wood is a doctrine which has to embrace in its application the interests of not only all the litigants who were before the court in these proceedings, but all potential litigants in all proceedings.  If this court were to say that in circumstances like these, a matter which had already been litigated could be relitigated, then there would be no end to litigation across the broad spectrum of all proceedings.  So this court is not able to accept that beguiling submission of Mr Hossain.  The court has to do justice between the parties with the public interest in mind, and therefore I am bound to conclude that this application must fail.

27.	Finally, there is another way that the point may be put: this is an application for a second appeal.  There has already been one appeal to Eady J.  This court only has jurisdiction to give permission for such a second appeal where there is an important point of principle or practice, or some other compelling reason why permission should be given.  However important this case is to Mr Hossain and the other applicants, which I recognise, this case concerns not an important point of principle, but the application on particular facts of the principle in Johnson v Gore Wood, a principle which is clearly covered by the judgment of the House of Lords in that case and other cases such as Stuart v Goldberg Linde which have applied it since 2002.  Therefore, it seems to me that apart from the other reasons which I have given, this court has no jurisdiction to accept Mr Hossain’s submissions.

28.	For all these reasons, I would refuse this application.

LADY JUSTICE SMITH:  

29.	I agree.

LORD JUSTICE GOLDRING: 

30.	I too agree.

Order:  Application refused.

Post-Judgment Discussion & Costs Order

LORD JUSTICE RIX:  Well, Mr Hossain, we have given you a lot of time this morning on an application because we were concerned to hear what you had to say in full and to consider it carefully.  I know our judgment must come as a disappointment to you, but you have heard what we have had to say.  Mr Jones, any application?

MR JONES:  My Lord, yes.  We apply for our costs of this appeal.  There is one matter that we ought to clarify first as a matter of practice, which is that the appellants before you, who appeared consistently as “and others” in the documents, are not the same group of appellants who appeared before Master Foster; and a number of them have accepted the offers we made after you stayed the proceedings, not to enforce an earlier costs order against them if they withdrew from the appeal.  As I presently understand it, there are three appellants: Mr Hossain himself –

LORD JUSTICE RIX:   Three common appellants, yes.

MR JONES:  Three common appellants: Mr Hossain himself; Mrs N Alam, and a Mrs A Islam.  I am not aware of any of the other former appellants persisting in the appeal to this stage; perhaps Mr Hossain can clarify, since he is representing himself today.

MR HOSSAIN:  We are four.  

MR JONES:   I would ask you to just indicate who the fourth is.

LADY JUSTICE SMITH:  We had five names in the Notice of Appeal, and we had been told that one has dropped out.  We may not be up-to-date.

MR JONES:  Right.

MR HOSSAIN:   That is correct.  There were five; one dropped out, so there are four.

LADY JUSTICE SMITH:  Can you name the one who has dropped out?

MR HOSSAIN:  The person who dropped out, the name is Mrs Kaledana Nunn.

LADY JUSTICE SMITH:  That is number five in our –

MR HOSSAIN:  Number five.

MR JONES:  Thank you.

LADY JUSTICE SMITH:  Who else do you think has dropped out?

MR JONES:  I think Mrs Ismat Choudry has also dropped out.

LORD JUSTICE RIX:   Well, you have an application for costs which you were only making against three applicants?

MR JONES:  Yes.

LORD JUSTICE RIX:  And those three applicants were the three which you have just named?

MR JONES:  Indeed.

LORD JUSTICE RIX:  Mr Hossain, Mr Islam was that?

MR JONES:  Mr Hossain, Mrs N Alam and Mrs A Islam. 

LORD JUSTICE RIX:  Mrs Islam and Mrs Alam.

MR JONES:  Mrs Alam, A-L-A-M.

LORD JUSTICE RIX:  Yes.

MR JONES:  My Lords, we have submitted a statement of costs, which will be found in bundle c, tab 8, page 42. 

LORD JUSTICE RIX:  This is in the sum of ₤37,000 –

MR JONES:  This is the figure; it is undoubtedly a large sum.

LORD JUSTICE RIX:  ₤37,000.

MR JONES:  ₤37,000, that is right, my Lord.  It has been an expensive process for us.  We have given at each stage to each of the appellants an opportunity to avoid those costs by withdrawing the appeal, but the decision was taken to persist with it.  In addition to the ordinary costs that one might expect in relation to a third-stage of appeal, we have had two matters which were unusual in this case.  One is how to deal individually with other appellant’s in an effort to persuade them to withdraw their claims, which has proven to be a matter which has taken us a long time.  The other is, because of the way the case has been put differently at each stage, we have had to reassess what it was we were going to say.  In relation to this case, this hearing before you, we have seen the development of a merits approach, which requires there to be some research of our own as to whether or not there were any underlying merits in relation to the case.  That took us some time it took us to the leading counsel with an expertise in Bangladeshi law and gave us some (inaudible) on that point.

LADY JUSTICE SMITH:  Where do we find that on the list?  One of the items, I must confess, that concerned me was 49 hours under “Preparation and consideration  of documents and case management by SXS”.  49 hours is an onerous amount of time, bearing in mind this is a second appeal.  The representation has been the same throughout, has it not?

LORD JUSTICE RIX:  Did I hear you say that these costs include the costs of dealing with other applicants who have not come through to this stage?  I think I did hear you say that.

LADY JUSTICE SMITH:    I think I did as well.

LORD JUSTICE RIX:  I do not see why they should be, in any event, in your costs schedule.

MR JONES:  My Lord, I can see that point. And it is within the 49 hours, as I understand it, that the time has been proposed as recorded.  My Lord, we’ve asked for the course of summary assessment, and the indication I am getting, and possibly a little less specific than you might have hoped for, is that the 49 hours of time was to be incurred and recorded, if you were not satisfied -- I understand it today that there was time included, we would certainly be content for it to go to taxation on the basis that someone could have a good look at it and satisfy themselves as to whether it was time properly incurred.  If can give the assurance on one point, it does seem to me that in any taxation, you are right, the costs incurred in dealing with people who have now withdrawn should not fall to the remaining appellants to deal with.  I also -- I do not know what comfort this will be to Mr Hossain, who told us the costs of meeting with the leading counsel with an expertise in Bangladeshi law was not reflected in the costs statement put before you, and those are not costs that we now seek.  So it may be that, given the size of the sum we are seeking, with the lack of specificity under that heading, this is a matter better dealt with by taxation on a summary assessment.

LADY JUSTICE SMITH:  It puts further costs on, does it not, because there will have to be another hearing?  I am also concerned about having two solicitors present on this hearing; one being partner Gregg Wan (?) and the other being Assistant Solicitor Gregg Wan.  

MR JONES:  Well, the reason for that is simply one of history.  SXS is Sirus Marx (?) who was the solicitor who was present at the original tribunal hearing, but she was absent on maternity leave at the point at which the –

LADY JUSTICE SMITH:  That may be a good explanation from the point of view of the solicitors concerned, but whether it is a matter that the losing appellant should have to pay for is another matter entirely.

MR JONES:  I see your point, but all I can do really is indicate why there are here.

LADY JUSTICE SMITH:  Yes, quite so.

MR JONES:  As I say, (inaudible).

LADY JUSTICE SMITH:  It seems to me there are a number of problems with this bill.

LORD JUSTICE RIX:  Just remind me, what is the date of Jacob J’s order, 26 February 2008?  And you were first involved on 6 May 2008?

MR JONES:  Yes.

LORD JUSTICE RIX:  And all these costs -- what is the earliest cost involved of all these costs?  The only reference to a date otherwise is 15 May, which is the conference with you.  What is the answer to my tiny question?

MR JONES:  The costs start once the Notice of Appeal was submitted, but not post-Jacob J’s –

LORD JUSTICE RIX:  They start before the Notice of Appeal, do they?

MR JONES:  After the Notice of Appeal was submitted to the Court of Appeal.  So at that point, as I understand it, we had to get our house in order to seek to be prepared in the event that permission were given.  It was initially refused on the papers, at which point there was some relaxation, but then an oral hearing with Jacob J, at which point the bulk of the costs, as I understand it, was thereafter incurred.  But there are costs which pre-date Jacob’s –

LORD JUSTICE RIX:  Costs pre-date -- some costs pre-date Jacob J’s order.  And I think my Lord, Lord Justice Goldring, has a question for you.

LORD JUSTICE GOLDRING:  I just have a query about 9.8 hours engaged with counsel, under “Attendances/communications” on the first page.

LORD JUSTICE RIX:  Which is not reflected in counsel’s statement of costs?

LORD JUSTICE GOLDRING:  No.

MR JONES:  Right.  I have been instructed that it reflects my own client’s constant complaint that I do not necessarily charge for each minute of time I spend at –

LADY JUSTICE SMITH:  Well, each minute of time is rather different from 9.8 hours.

MR JONES:  It is.  The time we spent –

LADY JUSTICE SMITH:  More than a whole day.

LORD JUSTICE RIX:  How long was the conference?  Half a –

MR JONES:  That was 1.7 hours.

LORD JUSTICE RIX:  Yes.  Well, we’ll rise in a moment to consider this.  Mr Hossain, have you seen this document relating to costs, yes?

MR HOSSAIN:  Just the -- I couldn’t see properly.  It just came in.

LORD JUSTICE RIX:  When did you first see it?

MR HOSSAIN:  Yesterday.

LORD JUSTICE RIX:  Yesterday?

MR HOSSAIN:  I was not – I (inaudible) on it.

LORD JUSTICE RIX:  Have you anything to say about it?

MR HOSSAIN:  I do not know the legal implications, but I definitely know they have inflated it abnormally.  Because last time, from my experience, I say, I have to tell you now to seek justice, when the case went to Eady J, the charge was ₤6,000.  And then when it went another day with a similar fight, similar one, similar case, similar arguments, then they submitted a costs claim of ₤60,000 to ₤65,000.

LORD JUSTICE RIX:  ₤62,000.  That was before –

LADY JUSTICE SMITH:  £60,000 to £65,000.

MR HOSSAIN:  Normally…

LORD JUSTICE RIX:  That was before Eady J?

MR HOSSAIN:  Yes.

LORD JUSTICE RIX:  Yes.  

MR HOSSAIN:  Because it was abnormally high – another QC was the presenter, and he said this (inaudible) costs –

LADY JUSTICE SMITH:  There has been an order for a detailed assessment of the costs before Eady J, and that has not taken place yet?

MR HOSSAIN:  No, we have not gone forward with that.  I think it is last probably.

LADY JUSTICE SMITH:  I am sorry?

MR HOSSAIN:  Because they have not – 

LADY JUSTICE SMITH:  You think it is last?

MR HOSSAIN:  The order will be less, because they did not go in time.

MR JONES:  It has not actually been completed.  When the Notice of Appeal was missing, and there was an express request from Mr Hossain –

LADY JUSTICE SMITH:  – For a stay.

MR JONES:  It was stayed pending the outcome of this court.  As I understand it, that is where we presently are.

LADY JUSTICE SMITH:  Yes. 

MR HOSSAIN:  My argument – sorry – My argument was since I will bring to the higher court, obviously if I win in the Court of Appeal in a higher state I am not entitled – I mean, subject to any payment.

LADY JUSTICE SMITH:  Yes.  That would probably be right.

MR HOSSAIN:  The legal trappings, I do not understand.  I mean, even I am a litigating person, I must...

LORD JUSTICE RIX:  Well –

MR HOSSAIN:  ₤6,000 charge for the same case, and suddenly it goes to ₤60,000, ₤62,000, just to grill an innocent fellow.  Sometimes they say, (^inaudible 14:01) rules the law, I am sorry to say.  I am really –

LORD JUSTICE RIX:  We will rise.

(The judges exited the court)
(The judges re-entered the court)

LORD JUSTICE RIX:  Following the refusal of this application, we assessed the respondent’s costs.  We have before us a statement of costs totalling £37,136.  It is a statement upon which we have difficulties in relying, for three reasons.  One is because, to an indeterminate amount, it includes costs which pre-date Jacob J’s order adjourning the matter on notice to this court; partly because it includes an item of no less than 49 hours’ preparation and consideration of documents and case management, amounting in sum to ₤12,250 in the case of one fee-earner; and in addition, another about 36 hours totalling another ₤6,000 or so in relation to other fee-earners.  In respect to the 49 hours, Mr Jones was unable to assist us on what those very considerable time periods were concerned with, when after all this is the applicants’ application or potential appeal, not the respondent’s.  The third matter which gives us difficulty is that there is another item relating to the engagement of one of the fee-earners of 9.8 hours’ communications with counsel.  There are two other fee-earners engaged with counsel for much shorter periods of 0.2 hours and 0.1 hours.  So far as the 9.8 hours are concerned, that is not reflected in the itemization of counsel’s fees, other than to the extent really of a conference, which he informs us took 1.7 hours.  For those reasons we find particular difficulty in relying upon this statement of costs.  In any event, we consider it to be an excessive figure and a disproportionate figure in response to an application for permission to appeal on a second appeal, albeit it was adjourned on notice to this court.  
We have, in these circumstances, having asked certain questions of Mr Jones which have produced the observations which I have just made, ended up by asking Mr Jones to be clear whether he wishes us to assess costs here, and he has confirmed on instructions that he does.  We are told that a previous permission to appeal hearing before Tugendhat J involved costs of ₤6,000.  We have to take a broad brush to this and try to reach, in the light of the figures put before us and the observations which we have made on them, a proportionate figure to conclude on at the end of the day.  The figure that we have judged and assessed as the highest proportionate amount is one of ₤15,000.  
Thank you very much indeed.  Thank you for your submissions.

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