Algeilani v El Samawi

Factual and Procedural Background

This appeal concerns a costs dispute arising from proceedings regarding the burial of a deceased doctor who died in a hospital in The City. The Plaintiff, the deceased's only son, wished for the burial to take place in the Kingdom of Saudi Arabia, while the Defendant, the deceased's third wife, wanted the burial to occur in The City. The deceased was domiciled in Saudi Arabia at the time of death and had a Saudi Arabian passport. The Plaintiff initially sought an injunction preventing the Defendant from directing the disposal of the body and subsequently applied for an order appointing him as administrator under section 116 of the Senior Courts Act 1981, limited to burial arrangements, or alternatively sought to rely on the court's inherent jurisdiction to be responsible for the burial. The Defendant denied these claims and contended the burial should take place in The City promptly.

The proceedings involved expedited trial directions, procedural disputes, and written submissions addressing the court's powers under both the statutory provision (section 116) and inherent jurisdiction, including the relevance of the deceased's domicile. The judge issued a draft judgment resolving the domicile dispute in favor of Saudi Arabia and initially held that the inherent jurisdiction did not apply, deciding against the Plaintiff on the basis that no special circumstances justified overriding the statutory priority of the Defendant under Rule 22 of the Non-Contentious Probate Rules 1987.

Subsequently, a new point was raised by the Plaintiff's new counsel, invoking Rule 28(2) of the Non-Contentious Probate Rules which disapplies Rule 22 when the deceased is domiciled outside England and Wales. The judge reconsidered and ultimately concluded that section 116 did not apply and that the inherent jurisdiction was the relevant power, ruling in favor of the Plaintiff. The deceased's body was transported and buried in Saudi Arabia accordingly.

The only issue on appeal is the costs order made by the judge, who awarded the Plaintiff costs only from the date the new Rule 28 point was raised, requiring the Plaintiff to bear the Defendant's costs incurred before that date. Permission to appeal the costs order was granted.

Legal Issues Presented

1. Whether the judge erred in principle in exercising his discretion under CPR Part 44 in ordering the Plaintiff to bear the Defendant's costs incurred prior to the introduction of the Rule 28 point.
2. Whether the late introduction of a new legal argument (Rule 28 disapplication of Rule 22) justifies departing from the usual rule that the unsuccessful party pays the successful party's costs.
3. Whether the Plaintiff's conduct in litigating alternative claims under section 116 and the inherent jurisdiction affects entitlement to costs.
4. Whether the Respondent's Notice challenging the judge's legal analysis on section 116 and Rule 30(1) should be admitted despite being filed late.

Arguments of the Parties

Appellant's Arguments

• The general rule under CPR Part 44 is that the unsuccessful party pays the successful party's costs; exceptions must be justified.
• The late introduction of the Rule 28 point did not deprive the Plaintiff of success or entitlement to full costs.
• It was reasonable and proper to plead alternative claims under section 116 and the inherent jurisdiction.
• The introduction of the Rule 28 point was part of the Plaintiff's duty to the court and should not be treated as conduct justifying a costs penalty.
• The judge erred by speculating that the Defendant might have acted differently had the Rule 28 point been raised earlier.
• The Respondent's Notice challenging the legal analysis of section 116 should not be admitted as it is a substantive appeal filed late.

Respondent's Arguments

• The judge's costs order was within his broad discretion and properly reflected the conduct of the parties.
• Until the Rule 28 point was raised late in the proceedings, the Defendant had succeeded and was entitled to costs.
• The late new point was not raised in pleadings or early submissions, justifying the costs order.
• The Respondent filed a Respondent's Notice raising a legal argument that section 116 applies, but this was late and should be refused or disregarded.
• The judge provided ample reasons for his costs decision in the unusual circumstances of the case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the general rule that the unsuccessful party pays the successful party's costs but emphasised the wide discretion afforded to judges under CPR Part 44 to depart from this rule in the interests of justice and fairness. The judge's costs decision was assessed against established principles requiring that interference by an appellate court only occurs if the judge has erred in principle, taken into account irrelevant factors, omitted relevant factors, or exercised discretion unfairly.

The court accepted that the judge was entitled to treat the introduction of the Rule 28 point—disapplying Rule 22 due to the deceased's foreign domicile—as a significant new development that emerged late in the proceedings, after the judge's draft judgments had been circulated. Prior to this, the Defendant had succeeded and was entitled to costs. The late emergence of the new argument justified a departure from the usual costs rule, with the Plaintiff bearing the Defendant's costs incurred before the new point was raised.

The court rejected the appellant's argument that raising a new legal argument is not "conduct" relevant to costs discretion, affirming that it is a relevant consideration. The speculative suggestion that the Defendant might have acted differently had the point been raised earlier was noted but not central to the decision.

The court also considered the Respondent's Notice raising a late legal argument on section 116 but found that it did not affect the costs appeal and granted permission to admit it, finding no prejudice to the appellant.

Ultimately, the court found the judge's costs order to be within the generous ambit of reasonable discretion and declined to interfere with the decision.

Holding and Implications

The court DISMISSED THE APPEAL against the costs order made by the judge. The judge's decision to order the Plaintiff to bear the Defendant's costs incurred before the introduction of the Rule 28 point was held to be a proper exercise of discretion under CPR Part 44.

The direct effect is that the costs order stands: the Plaintiff recovers costs only from 14th February 2020 onwards, while bearing the Defendant's costs prior to that date. No substantive appeal was made against the merits of the burial decision, and no new precedent was established regarding the court's powers over burial disputes or costs rules beyond the application of established principles of costs discretion.