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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kashi v Harvey [2001] EWCA Civ 733 (26 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/733.html Cite as: [2001] EWCA Civ 733

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Thursday, 26th April 2001

1. LORD JUSTICE JUDGE: Mr Kashi makes two applications for permission to appeal in these circumstances. First, he seeks permission to appeal an order for costs made by Mr Justice Buckley on 31st October 2000. That was a hearing at which, on Mr Kashi's application, an appeal hearing which subsequently came on before Mr Justice Gray was adjourned. Mr Justice Buckley, instead of ordering that either the appellant or the respondent should have the costs, made an order that costs should be costs in the appeal. Mr Kashi seeks to appeal on the basis that having applied for an adjournment and the judge having allowed the application on condition that he brought money into court, his application was successful and therefore he should have costs.
2. So far as the second application is concerned, that is an application for permission to appeal against the decision of Mr Justice Gray given on 26th January 2001 rejecting an appeal from the decision to strike out the appellant's claim made by His Honour Judge Goldstein at the Central London County Court on 18th August 2000. This is a second appeal for the purposes of CPR 52 and so the court cannot give permission unless it considers the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
3. This case is about is a series of items of household furniture and furnishings. On 17th December 1999 the claimant issued particulars of claim in the Brentford County Court asserting that at all material times he was the owner of furniture and personal effects listed in the particulars. These included a number of plainly attractive items: chandeliers, a piano, a dinner set, inlaid mahogany dining table and chairs, picture frames and so on. The precise details do not matter for present purposes. The defence to that claim did not admit the ownership of the furniture, but explained that various items had been placed in storage with the defendant by the claimant and then set out a series of averments about arrangements which were to govern the bailment of the property.
4. All this happened approximately two years after the applicant had been made subject to an individual voluntary agreement (IVA) on 22nd September 1997. That is a significant date because in June 2000 the applicant applied to substitute his two children as the claimants in his place and to be appointed as their litigation friend. He asserted that he had given these various items claimed in the particulars to them in 1995, that the particulars of claim had been issued in his name and the assertion made in paragraph 1 that he was the owner of the chattels was an error; he had done so by mistake. On 18th August Judge Goldstein refused the application to substitute the children for the applicant. The application had been resisted by the defendant who had highlighted the fact that the appellant was subject to an IVA and therefore any property which he might recover in the proceedings would benefit his creditors rather than himself.
5. It was also submitted that there was no evidence beyond the assertion of the claimant that there had been any such present or gift to the children and therefore the application was an attempt to set up a sham which ultimately would allow the appellant to recover the goods for his own benefit. Judge Goldstein refused the application and went on to make a further order:

"Upon the claimant through his legal representative informing the court that he has no legal right to bring these proceedings the claim is hereby struck out."

6. His appeal against that decision was rejected by Mr Justice Gray.
7. It is unnecessary to set out the story of these events in any greater detail save perhaps to notice that in the letter before action as well as in the particulars of claim the appellant was writing asking for a time to be arranged to collect "all my furniture and chandeliers and the rest of my belongings". In April 1998, about six days later, the appellant wrote, this time repeatedly referring to the property as his children's property which had been placed with the defendant on trust.
8. The hearing before Mr Justice Buckley, which I shall deal with first, arose because there was a date listed for the appeal hearing in November which coincided with the appellant needing to be in the United States of America dealing with applications for contact in that country. Because he could not be here at the date of hearing he asked for an adjournment. That application was opposed. I have read the judgment of Mr Justice Buckley who was plainly concerned about whether he should grant the application and a little hesitant, but in the end felt he had no alternative but to grant it. He ordered that costs should be costs in the appeal.
9. So far as Mr Kashi is concerned, I should explain that although costs normally follow the event there is no absolute rule that they do and - more important in the context of this sort of event - an adjournment is often granted on the basis that the costs should be paid by the successful party who seeks and is granted the adjournment. It is by no means uncommon in applications for adjournments that costs, far from following the event, are payable by the successful party. That is because an adjournment is usually something that does not arise as a matter of the responsibility of the other party at all. As here, the adjournment, not wanted by the defendant, was to enable Mr Kashi to deal with the problems he had in the USA. An order for costs in the appeal was an entirely justifiable order. If the judge had said costs to be paid by Mr Kashi we would have had to consider very carefully whether that could have been interfered with. As it is, I can see absolutely no basis on which a successful appeal could be mounted. For what it is worth, I would have made the same order as Mr Justice Buckley, at any rate on the basis of reading the papers without having heard further argument.
10. The hearing having been adjourned, on 26th January 2001 Mr Justice Gray explained that he was of the view that the claim was based on the proposition that the claimant was the owner of the goods and now it was being asserted on his behalf that he did not own the goods. It therefore followed that the claim, as originally brought in the form in which I have described it, could not succeed. The judge was troubled by the application to substitute the children as claimants. He said there was a plain inference to be drawn that the sudden change in stance on the part of the claimant was prompted by a realisation that the proceeds would accrue for the benefit of the creditors and not for him. Mr Justice Gray considered that Judge Goldstein was justified in arriving at the conclusion that he did, that he should not substitute the children as the claimants.
11. So far as the substitution of parties is concerned, that is governed by CPR 19.2. I do not propose to read out the relevant rule. It is fair to say that the result desired by Mr Kashi could, in theory, be achieved in one of two ways: a substitution under sub-rule (4) or by bringing his children in as new parties under sub-section (2) and ceasing to be a party himself under sub-section (3). His difficulties are these: substitution will not assist because there is no question of his interest in the property passing to his children during the proceedings themselves. His entire case was that the children were the true owners in 1995, some four years or so before he had issue the proceedings. The difficulty with using sub-section (2) is that it will only assist if the addition of the new party - that is to say the two children - would assist the court to resolve all the matters in dispute in the proceedings, or if there were an issue involving the new party and an existing party connected to the matters in dispute. As it seems to me, once the appellant accepts as he did - and it is the whole basis of his application - that he does not own the property which is the subject of this litigation there are in truth no matters left in dispute in the proceedings. Bringing his children in as new parties would not enable the court to resolve the issue. In those circumstances I see no reason for concluding that there is any realistic prospect of a successful appeal against the decision of Mr Justice Gray. Accordingly, that application will be refused.
12. I remind Mr Kashi that Mr Justice Gray pointed out that the judge was not indicating that it would not be open to the children to bring a second action. The judge was saying that it was not right that they should be injected into the present action in place of the existing claimant.
13. Mr Kashi, despite the care with which you prepared your papers, for which I am grateful, I cannot grant the relief you are seeking.
Order: Application refused