“IN VIEW OF THE LAMENTABLE WAY IN WHICH BOTH THESE APPLICATIONS HAVE BEEN PREPARED, I DISALLOW ALL COSTS OF TODAY”: JUDGE CRITICAL OF SKELETON ARGUMENTS AND WITNESS STATEMENTS

In  Ahmed & Anor v Ahmed [2021] EWHC 1021 (Ch) Mr David Halpern QC (sitting as a Deputy High Court Judge) had much to say in relation to manner in which an application was brought before the court. The skeleton arguments were late, and unhelpful, the witness statements consisted mainly of allegations.  This led to the court making no order for costs.

In view of the lamentable way in which both these applications have been prepared, I disallow all the costs of today.”

THE CASE

The judge was hearing a hearing by the claimant for interim relief.   He was critical of the way in which the application had been prepared.

THE JUDGMENT ON THESE ISSUES

The judge set out the difficulties he had experienced in pre-reading and caused by late skeleton arguments.

    1. The proceedings, which only started in November 2020, have already spawned a number of interim hearings between the parties, which appear to be have been characterised by point-scoring on each side, without either party making any real attempt to narrow the issues or assist the court in accordance with the overriding objective of the Civil Procedure Rules.
    1. I was allocated a day on 21 April to read the papers, which include the Claimants’ bundle of 747 pages. There was no skeleton argument from either counsel. After spending some time reading this bundle, I guessed that the application before me was the Claimant’s application of 25 January which begins on page 189 of the bundle. After the court chased Mr Kamar Uddin, who appears for the Claimants, he asked at 14:27 if he could submit his skeleton by 22:00. The court told him that this was unacceptable and his skeleton was then received at 15:19.
    1. Mr Uddin’s skeleton does not comply with the Chancery Guide (paragraphs 21.73 to 21.84) and it did little to assist me in preparing for this hearing. It opens with a section headed “Issues” but these are the some (not all) of the underlying issues arising in the proceedings, not the issues which I am being asked to decide at this hearing. There is no chronology and no reading list.
    1. Mr Anawar Miah appears for the Defendant. His skeleton argument was not emailed to the court until 18:10, by which time, of course, the court office was shut. I received it at 09:18 yesterday morning, just over one hour before the start of the hearing. This skeleton argument contained a reading list which he estimated it would take me two hours to read. It referred to an application issued by the Defendant on 20 April 2021. That application was in a separate bundle and was not referred to in the Claimant’s bundle.
    1. Mr Miah sought to explain his non-compliance with the Chancery Guide by saying that there was a delay on the part of the Claimants’ solicitors in sending the bundle to him and that the bundle omitted a number of documents which had previously been before the court; Mr Uddin denied that his solicitors were at fault. Mr Miah also explained that he was briefed only yesterday. I see from his solicitor’s website that he is married to the senior partner and is described as a consultant to the firm; I note that he did not tell me that he was unaware of the case before yesterday.
  1. The skeleton arguments have given me very little help in understanding what I am being asked to decide or how I am to decide it, having regard to the American Cyanamid test. The witness statements are not much more informative, consisting as they do of sweeping allegations and counter-allegations. It may be that there is more material in them than I was able to find in the time available, but if so neither counsel pointed me to it. I have to piece the history together as best I can from the previous orders that have been made. I was told that the only judgment given was an oral judgment given by Adam Johnson J on 16 February 2021, of which no transcript is available.

NO ORDER FOR COSTS

The way in which the application was prepared did not go unmarked. There were consequences in costs and also that the judgment be referred to judges and Masters in future hearings.

 

    1. In view of the lamentable way in which both these applications have been prepared, I disallow all the costs of today. There will be no order as to the costs of the Claimant’s application of 25 January 2021 (save insofar as previously ordered); for the avoidance of doubt, there will be no order in respect of the costs reserved by Mann J and by Adam Johnson J. There will be no order as to the costs of the Defendant’s application of 20 April 2021 down to today. If that application remains a live issue, the future costs will be determined at any future hearing.
    1. If any further applications are made to the Interim Applications Court (including any further hearing of the Defendant’s current application), the parties are to draw this judgment to the attention of the Judge. I also direct that the parties are to draw this judgment to the attention of the Master at any Case Management Conference.