Asghar v Ahmad  EWHC 2234
A recent decision in the High Court Queen's Bench Division may make Claimant Solicitors think twice when issuing proceedings against multiple Defendants. Mr Justice Jeremy Baker recently concluded that the unsuccessful Fourth Defendant would not be indemnifying the Claimants for the costs of the four remaining successful Defendants. In addition, the Fourth Defendant was found to be liable for only 56% of the Claimants’ costs.
Facts of the Case
Mohammed Asghar (First Claimant) and Abdul Rehman Mujahid (Second Claimant) brought a claim for damages for defamation regarding management of two mosques in Newport and the Trusteeship of the properties.
In 2011, a number of documents came into the possession of certain members of the Muslim community, including some of the Defendants. The documents included legal titles regarding the ownership and trusteeship of mosque property. Following this, concerns were raised about the lack of transparency and democracy in relation to the governance of the mosques. In addition, the first four Defendants became concerned that the Second Claimant was seeking to personally benefit from the manner in which the mosques' assets were held. A number of meetings took place in an attempt to resolve these issues however this was not possible and the parties decided to submit their differences to a mediator. The mediator was a well known public figure being a member of the Welsh Assembly and was the First Claimant in this action. The mediation took place on 15 September 2011 and, at conclusion, was considered to be a success. However there were issues incurred in implementing the agreement and each party contended that the other was responsible.
Following this there were various documents circulated by the Defendants which stated that the Second Claimant had been fraudulently using charitable trusts to his own financial and political benefit. In addition, the documents erroneously confirmed that the Second Claimant had been subject to an Anti-Social Behaviour Order and was banned from interfering in the conduct at either of the mosques. It was further submitted that the First Claimant had been involved in assisting with this conduct. The publications were also uploaded to a website and the Fifth Defendant was said to have been responsible for this.
The Claimants subsequently brought a claim for defamation against the five Defendants and the Court held that the serious allegations of fraud and corruption caused significant stress and damage to the Claimant's reputation. On 23 April 2015 judgement was made for each Claimant against the Fourth Defendant in the sum of £45,000. The remaining claims were dismissed.
The issue of costs was heard on 30 July 2015. The First and Second Defendants submitted that the Claimant should pay their costs on an indemnity basis whilst the Claimants submitted that the Fourth Defendant should contribute towards payment of the costs of the First, Second and Third Defendants, in addition to payment of the Claimants’ costs on the indemnity basis. The Fifth Defendant did not put forward any claim for costs.
The court reiterated the discretion under CPR 44.2 and also set out the basis for assessment as per CPR 44.3(1).
The court noted that the discretion for costs is wide and considered:
“In relation to the issue as to whether the standard or indemnity basis should form the basis of any assessment, it is clear from Excelsior Commercial and Industrial Holdings Ltd v Salisbury Ham Johnson  EWCA Civ 879, that the indemnity basis may be justified where either the facts of the case and/or the conduct of the parties is such as to take the situation away from the norm. In this regard, it is not always necessary to show deliberate misconduct, in some cases unreasonable conduct to a high degree will suffice. Moreover, in relation to the issue as to whether some contribution should be made by an unsuccessful Defendant to a successful Defendant's costs, either under a Sanderson or Bullock type order, the Court of Appeal has explained in Irvine v Commissioner of Police for the Metropolis  EWCA Civ 129 that this may be of particular benefit where the proceedings arose out of a situation in which the claimant was unaware as to which of two or more Defendants was responsible for a wrong done to him, and he is at risk of his award of damages from the unsuccessful Defendant, being eroded or eliminated by an order for costs in favour of the successful Defendant. Some of the matters which may be of relevance to the making of such an order include: whether the original decision to join the successful Defendant was unreasonable; whether the claims against the respective Defendants were made in the alternative, and; whether one Defendant is blaming the other.”
The court further considered that, whilst the Claimants always had sound evidence against the Fourth Defendant, the evidence against the First, Second and Third Defendants was weak and inferential at times. In addition, the Claimants admitted in cross examination that the real reason as to why proceedings had been brought against the First, Second and Third Defendants was as a result of their support for the injunction application.
The court noted that the Claimants had refused reasonable offers from the First and Second Defendants to withdraw their claims in addition to refusing to enter settlement negotiations. The court also considered that the Claimants intended to delay the resolution of the claims due to the ongoing issues regarding the lack of transparency and management of the mosques.
Mr Justice Jeremy Baker considered that, whilst payment of the First, Second and Third Defendants' costs would mean the Claimants’ damages would be eroded, the costs were directly attributable to the unreasonable conduct of the Claimants in bringing claims against the first three Defendants. Consequently, no order was made for the Fourth Defendant to pay a contribution to the remaining Defendants’ costs. Neither was the Fourth Defendant ordered to be liable for the Claimants' costs incurred in pursuing the remaining three Defendants.
The court went on to consider the Claimants’ request for costs on the indemnity basis due to the Fourth Defendant's failure to attend trial causing the trial to be adjourned. The court noted that there was no increase in costs as a result of this and that the Fourth Defendant's absence from the adjourned trial was in fact likely to have saved costs. Consequently, this was not deemed sufficient conduct on which to award indemnity costs.
The court concluded that the Claimants would pay the first three Defendants' reasonable costs on the indemnity basis and that the Fourth Defendant would be liable for 56% of the Claimants’ costs on the standard basis.