Rashpal Samrai & Ors v Rajinder Kalia [2025] EWHC 1449 (KB)

[2025] EWHC 1449 (KB)Case No QB-2021-001052
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/06/2025
Before
THE HONOURABLE MR JUSTICE MARTIN SPENCER
Between
(1) Rashpal SamraiClaimants(2) Kashmir SahotaClaimant(3) Harprit DilbeherClaimant(4) Mandeep DilbeherClaimant(5) Joginder SinghClaimant(6) Tarsem SinghClaimant(7) Sukhdev KaurClaimantRajinder KaliaDefendant(1) Peacock & Co Solicitors LtdRespondents(2) Mark Simeon JonesRespondent
Ms Fenelon (instructed by The Centre for Women’s Justice) for the First ClaimantMr Ingham, Direct Access Counsel for Second to Seventh ClaimantsMs Crowther KC and Mr Clarke (instructed by Kingsley Napley LLP) for Defendant for The Respondents did not appear and were not representedHearing Hearing date: 4 th June 2025
JUDGMENT ON COSTSMR JUSTICE MARTIN SPENCER:

Introduction

[1]Pursuant to the Judgment dated 9 December 2024 in the main action, [2024] EWHC 3143 (KB) (“the main judgment”), costs issues have arisen resulting in a further hearing on 4 June 2025.[2]After the handing down of judgment in the main action, on 10 January 2025 the successful Defendant issued an application for wasted costs against the Claimants’ solicitors and counsel. This has had the effect of those representatives having to withdraw from the case, leaving the Claimants to find fresh representation. Miss Fenelon has appeared pro bono and Mr Ingham as Direct Access Counsel. The Defendant’s representation has remained unaltered.[3]As the successful party, it is not in dispute that the Defendant is, in principle, entitled to his costs of the action. The issues that have arisen concern: i) The basis for the detailed assessment of costs; ii) The extent to which the Defendant may enforce costs in his favour in respect of the First to Fourth Claimants’ claims where those claims included claims for personal injury and therefore prima facie enjoy costs protection; iii) Whether there should be interim payments on account of costs and, if so, whether they should be immediately enforceable.[4]So far as the applications for wasted costs against the Claimants’ former representatives is concerned, it was not possible for that matter to be heard at the same time as the other matters on 4 June 2025. Thus, whether, and the extent to which, the Claimants may be relieved of their primary liability to pay the Defendant’s costs by virtue of wasted costs being ordered against their former representatives remains to be determined on another date. As will be seen, this has implications for the enforceability of any Order for an interim payment on account of costs which might be made in this judgment.[5]Finally, by way of introduction, two further applications were heard and determined on 4 June 2025: The Defendant’s application for permission to appeal against my failure to find, in the main action, that there had been “fundamental dishonesty” on the part of the Claimants. Although this has no bearing on the outcome of the case given that the Defendant was successful in any event, it might have had a bearing on whether a finding of fundamental dishonesty overrides the protection which personal injury claimants otherwise have under the “Qualified One-Way Costs Shifting” provisions of CPR 44.13 and following. In the event, I refused permission to appeal on the basis that I did not consider it to be arguable that my decision not to make a finding of fundamental dishonesty was one which no reasonable judge could make.[6]The other matter dealt with on 4 June 2025 was an application on the part of the First Claimant for permission to appeal against the dismissal of her action against the Defendant. Again, I refused such permission. I considered that, in order for any appeal to have reasonable prospects of success, it would have to be shown that the substantive grounds of appeal, if successful, would have resulted in my reversing my decision not to exercise my discretion and disapply the limitation period. However, in my judgment, the reasons I expressed in the main judgment for refusing to exercise my discretion to disapply the limitation period (see paragraph 313 of the judgment) were so powerful that, even if the Court of Appeal considered the grounds of appeal to be well founded (which I do not), the decision on limitation would have been the same. For those reasons, permission to appeal was refused. Basis of Assessment[7]For the Defendant, Ms Crowther KC submits that the costs payable by the Claimants should be assessed on the indemnity basis. In accordance with the decision of the Court of Appeal in Excelsior Commercial & Industrial HoldingsLtd -v- Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 379 she submits that the test is whether there is something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs. She submits that there is no requirement for the case to be exceptional and it is not necessary to show deliberate misconduct: unreasonable conduct to a high degree can suffice. Where a case has been brought on a factual premise which was fundamentally false and which the Claimants knew to be false, this may be sufficient to take the case out of the norm. In support of her submission, Ms Crowther relies on the findings in the main judgment to the effect that the First to Fourth Claimants suborned witnesses, suppressed and destroyed evidence, lied and were dishonest to the court, to the police and to medical experts.[8]For the Second to Seventh Claimants, Mr Ingham submitted that there is no sufficient basis upon which the court should conclude that their conduct crossed the high threshold required for an indemnity costs order. He points to the fact that the court declined to make findings of fundamental dishonesty against the Claimants recognising that there was an evidential basis upon which the claims could have succeeded. In addition, he submitted that the conduct relied on by Ms Crowther included procedural irregularities and exaggerated financial schedules which predominantly arose due to the serious failings on the part of the Claimants’ former legal representatives rather than deliberate or unreasonable conduct by the Claimants themselves. Finally, Mr Ingham relies upon the Defendant’s own conduct which was the subject of criticism in the main judgment including making categorical denials subsequently found to be false by the court and which materially contributed to the complexity and length of the litigation. He submits that, in these circumstances, it would not be just or appropriate to characterise the Claimants’ conduct as sufficiently unreasonable or exceptional as to justify an indemnity costs order.[9]For the First Claimant, Ms Fenelon supports and adopts Mr Ingham’s submissions. In addition, in respect of her client, she distinguishes her case from that of the Second, Third and Fourth Claimants in that it was found that her claim that she had engaged in a long-term sexual affair with the Defendant was true.[10]Ultimately, the basis of assessment of costs is in the wide discretion of the trial judge. For the reasons set out by Ms Crowther in her Skeleton Argument, I find that the conduct on the part of the Second, Third and Fourth Claimants, and in particular their allegations that the Defendant exploited his position as leader of the Baba Balak Nath Temple in Coventry to exploit them sexually and financially not to have been proved, and therefore to be untrue, takes their cases out of the norm and justifies an indemnity costs order, when taken with their other conduct. However, I decline to make an indemnity costs order in the case of the First, Fifth, Sixth and Seventh Claimants and their costs shall be assessed on the standard basis. Enforcement of Costs in respect of the First to Fourth Claimants: QOCS[11]The order made on 9 December 2024 arising out of the main judgment provided that cost orders against the Fifth, Sixth and Seventh Claimants are enforceable without the need of the court’s permission. However, the claims of the First to Fourth Claimants include claims for personal injury and therefore engage the provisions of the CPR relating to “Qualified One-Way Costs Shifting”.[12]By CPR 44.13, the Qualified One-Way Cost Shifting provisions apply to proceedings which include a claim for damages for personal injuries, as in the case of the First to Fourth Claimants. By CPR 44.14 it is provided:
“(1) Subject to rules 44.15 and 44.16, orders for costs made against the Claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for, or grievance to pay or settle a claim for, damages, costs and interest made in favour of the claimant.”
[13]Here, there has been no order made in favour of the Claimants and therefore, subject to the exceptions in rules 44.15 and 44.16, there can be no enforcement of costs against the First to Fourth Claimants without permission of the court.[14]The relevant exception for the purposes of the Defendant’s application is that contained in rule 44.16(2) which provides:
“(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court and to the extent that it considers just where … (b) a claim is made for the benefit of the claimant other than a claim to which this section applies.” (b) a claim is made for the benefit of the claimant other than a claim to which this section applies.”
[15]The commentary in the White Book explains that rule 44.16(2)(b) applies in a case where, in the same proceedings, the Claimant has brought a claim for damages for personal injuries and has also brought a claim or claims other than a claim for damages for personal injuries. In Brown -v- Commissioner of Policefor the Metropolis [2019] EWCA Civ 1724 it was found that if proceedings can fairly be described “in the round as a personal injury case” then, unless there are exceptional features (for example a grossly exaggerated car hire claim), it is likely that the court will exercise its discretion in such a way that Qualified One-Way Costs Shifting will continue to apply to the whole claim. In contrast, in Jeffreys -v- Commissioner of Police for the Metropolis [2017] EWHC 1505 (QB) where, in the same proceedings, a claimant claimed damages for personal injury and damages for malicious prosecution, false imprisonment and misfeasance in public office, the exception in rule 44.16(2)(b) was held to apply even though the claims were inextricably linked. Similarly, in Siddiqui -v-University of Oxford [2018] EWHC 3536 (QB), the unsuccessful claimant claimed damages for psychiatric injury and damage to his career as the result of negligent teaching at university and the court adopted a broad brush when separating the personal injuries element (to which Qualified One-Way Costs Shifting applied) and the claims in contract and tort for economic loss, to which it did not and the claimant was ordered to pay 25% of the defendant’s costs.[16]For the Defendant, Ms Crowther submits that the court should apply the exception contained in rule 44.16(2)(b) to the non-personal injuries aspects of the claim, namely the claims for financial loss arising out of the allegations of undue influence. She suggests that, on the broad brush basis endorsed in cases such as Siddiqui, the courts should order the costs to be enforceable against the First to Fourth Claimants to the extent of their share of 60% of the total costs incurred by the Defendant in defending the action, to reflect the fact that these are mixed claims. This is on the basis that the claims are not “in the round” personal injury actions as illustrated by the fact that a very small proportion of the damages claimed arose out of the claims for personal injury (on her estimate, 5%). At paragraphs 33–35 of her Skeleton Argument, Ms Crowther undertakes a broad analysis of the time and expense incurred in dealing with the different claims pre-trial and at trial as justifying her submission that about 60% of the cost incurred should be attributable to the non-personal injury claims.[17]For the First Claimant, Ms Fenelon submits that this was, in the round, a personal injury claim, sexual exploitation being at the heart of the case: it was these allegations which caused the First Claimant to contact the police and which formed a significant part of the judgment. She describes the other claims as ancillary and points to the fact that undue influence was relevant to both the sexual abuse claim and the financial abuse claim. She submits that there are no exceptional features that apply and that the QOCS protection should apply to the whole claim. If the court is against her on that, then she submits that the court can and should exercise its discretion in favour of the First Claimant. In this regard, she points to the Defendant’s conduct of the claim and in particular his repeated denials of any sexual conduct which the court rejected in the case of the First Claimant. She submits that the Defendant’s denials in this regard were a lie and sexual contact between the Defendant and the First Claimant took place over a 23 year period and led to three terminations of pregnancy. Had the Defendant been candid and honest, the issue at trial would have been confined to consent. Furthermore she relies on the relative status and financial positions of the parties. She describes the First Claimant as a single, divorced mother who lived in rental accommodation and survived on benefits for a significant period and who has no assets. Finally Ms Fenelon relies on the psychological consequences that a costs order would entail for the Claimant, a person who has struggled with her mental health over many years. She refers to the fact that the First Claimant has asserted in her witness statement that a costs order against her would “undo” her.[18]For the Second, Third and Fourth Claimants, Mr Ingham similarly points to the fact that the judgment did not represent a complete vindication of the Defendant’s conduct or credibility, the court having found that the Defendant’s categorical denial of any sexual relationship with the First Claimant was false, a finding which, he submits, significantly undermines the Defendant’s position, demonstrating that he misled the court on a critical aspect of his evidence. Mr Ingham also pointed to, and relied upon, criticisms in the main judgment of the Defendant’s role as leader of the temple in Coventry whereby, in his evidence, the Defendant had consistently sought to downplay his influence. He submitted that, in the main judgment, the court had observed, in clear terms, that this was a dispute where both parties’ conduct had contributed negatively to the circumstances leading to trial, reflecting serious criticisms on each side whereby although the Defendant succeeded in defeating the claims, the main judgment’s criticisms of the Defendant’s conduct, credibility and evidential reliability rendered it far from being an unequivocal vindication.[19]In addition, Mr Ingham, in similar terms to Ms Fenelon, relied on the disparity in wealth between the Defendant and the Second to Fourth Claimants. Finally he submits that the court can and should rely on two further matters: First, there may be a public policy interest in not deterring individuals from making allegations of misconduct in the religious context; secondly, the court should take account of the fact that a large and substantial part of the reason for the failure of the claims related to the negligence by the Claimants’ advisors and their expert.[20]In my judgment it is not appropriate to characterise this case as being, in the round, a personal injury claim whereby the costs protection should apply to the whole claim by the First to Fourth Claimants. Although the personal injury claim was an important aspect and took up a large proportion of the trial, there was also significant time taken up with cross-examination and submissions on the non-personal injury aspects. Furthermore, the fact that the personal injury aspects and the other aspects can be distinguished is clearly shown by the fact that claims were brought by three of the claimants, namely the Fifth, Sixth and Seventh Claimants, without there being any personal injury aspect at all and broadly on the same basis as the claims by the First to Fourth Claimants. In my judgment, the claims for harassment, unpaid services, repayment of monies paid pursuant to loans for purchase of cars, travel expenses, monetary donations to the temple and to third parties for services to participate in temple events, all said to result from the Defendant’s undue influence, can and should be separated out and come clearly, in my judgment, within the exception provided by rule 44.16(2)(b).[21]In addition, I decline to exercise my discretion to refuse to allow the appropriate proportion of the costs attributable to the non-personal injury claims to be enforced. Whilst I, of course, have sympathy for the position in which all of the First to Fourth Claimants are left if facing enforcement of costs orders, the fact is that they entered into this litigation as adults and with full knowledge of the risks which such litigation entails. They were pre-warned of those risks when the police declined to prosecute the Defendant on the basis that the evidence against him was insufficient. The risks were enhanced by the fact that they did not take out “After the Event” insurance and although I accept, as Ms Fenelon submitted, that such insurance was difficult or impossible to obtain, the Claimants were or should have been aware that the risk to them personally was thereby enhanced. They then increased their jeopardy by the way they conducted themselves both pre-trial and during the trial in their evidence and the result is that they must bear the consequences in terms of costs. I do not consider that the disparity in their financial position compared to the financial position of the Defendant (who, after all, has, I am told, spent the best part of £2 million in defending this claim) is sufficient reason for me to exercise my discretion as the Claimants seek.[22]As for the appropriate proportion in relation to the First to Fourth Claimants, I consider that the 60% sought by Ms Crowther is too high. It is well known that the costs of litigation increase as trial is approached and that the most expensive part of litigation is the trial itself and I do not agree that the time at trial was “relatively evenly spent on both aspects of the claim” as Ms Crowther submitted: It was weighted heavily in favour of the personal injury aspects. The claims of the Fifth and Sixth Claimants took no time at all as they were struck out on Day 7 and the claim of the Seventh Claimant took relatively little time. The vast proportion of time was devoted to the claims of the First to Fourth Claimants and in particular their claims of sexual abuse. Although the pre-trial time spent would have been more evenly divided, overall on a broad brush basis, I assess the appropriate proportion to be 40%. Interim Payments on Account of Costs[23]In principle, where costs orders are made subject to detailed assessment, it is appropriate for the court to make interim orders for costs. For the Defendant, Ms Crowther KC submits that, where the court has made a costs management order pursuant to CPR rule 3.15, the starting point for assessment of a “reasonable sum” to be paid on account of costs is the approved or agreed budget because, on assessment, the court will not depart from this unless there is good reason to do so. In Thomas Pink Ltd -v- Victoria’s Secret [2014] 3258 (Ch), Birss J ordered a payment on account of 90% of the approved budget on this basis. Here, the approved budget totalled £1,665,000 (excluding VAT), 90% of which would £1,500,000. If, in the case of the First to Fourth Claimants, 60% is deducted, that leaves £600,000. If divided equally amongst the seven Claimants and VAT is added, the total for each of the First to Fourth Claimants would be just under £103,000 which I round down to £100,000.[24]The position of the Fifth to Seventh Claimants is somewhat different. Although, in principle, I consider that liability for costs should be both joint and several, the claims of the Fifth and Sixth Claimants were struck out on Day 7 of the trial and they therefore should have no responsibility for the costs thereafter. However, although the Fifth to Seventh Claimants do not benefit from the 60% deduction for the personal injury aspects of the claim pursuant to CPR r.44.16(2)(b), they are entitled to some deduction to account for the fact that they did not have personal injury claims at all. Whilst the appropriate proportions in which the costs should be paid by each Claimant will be a matter for the detailed assessment, for the purposes of assessing an interim payment, I adopt the same proportion as I have adopted in the case of the First to Fourth Claimants. I acknowledge that this is arguably generous in the case of the Seventh Claimant, in particular, whose case was not struck out and if she is to be jointly and severally liable for all the costs, including the personal injury costs of the First to Fourth Claimants, but I consider such an approach to be appropriate so as not to pre-judge the detailed assessment or prejudice the Seventh Claimant in respect of it. Accordingly, the sum to be paid by way of interim payment shall be £100,000 in respect of each Claimant.[25]There is, however, a complicating factor, namely the outstanding and impending application for wasted costs against the Claimants’ former legal representatives. I do not consider that it would be appropriate for the interim payments on account of costs to be enforced until the wasted costs application has been determined and the court has an opportunity to consider whether any of the Claimants may be relieved of any part of their liability to pay the Defendant’s costs by virtue of a wasted costs order. I will therefore order that the enforcement of the above interim payment awards on account of costs be stayed pending the resolution of the claims for wasted costs but there shall be liberty to the Defendant to apply for the stay to be lifted should there be developments in the claims for wasted costs (for example, compromise) which make the lifting of the stay arguably appropriate.[26]I make it clear that the interim payments awards are made on the basis that no order for wasted costs is made. If such an order is made, then the Claimants shall be at liberty to apply to vary or discharge the interim payments orders.