Habib Bank Ltd v Ahmed (2004)


The defendants' application for permission to appeal from the making of a charging order absolute was refused on the ground that there was no arguable case that the judge had overlooked evidence, which would have made a material difference to his decision.


The defendants sought permission to appeal against the making of a charging order absolute. In 1999 the claimant bank (H) obtained judgment against the first defendant (X) in Pakistan. H registered the judgment in the High Court under the Foreign Judgments (Reciprocal Enforcement) Act 1933. In 2000 H applied for a charging order over a hotel and a fitness club, which were registered in X's name at the Land Registry. A charging order nisi was made. By then the hotel had become the subject of a declaration of trust in favour of X's wife and the fitness club had been transferred to the wife and X's two sons by way of gift. The judge held that the charging order should be made absolute on the ground that the transactions were for the purpose of putting assets beyond the reach of H as a creditor. Pursuant to the Insolvency Act 1986 s.423 the judge, in making the charging order absolute, made further orders restoring the position to what it would have been if the transactions had not been entered into. The defendants sought permission to appeal arguing that the judge had overlooked evidence about the origins of the money provided to buy the hotel before the legal proceedings began against X in Pakistan.


(1) The defendants had re-marshalled their case but absent some truly significant new element it remained the case evaluated and rejected by the judge. The son's evidence, which was relied on, did not materially impact on the judge's reasoned rejection of the assertion that part of the funds for the purchase of the hotel had come from X's wife. It was fanciful to suppose that the judge would have been persuaded that the money was hers. The reasons for disbelieving that any of the money was hers were far too strong. There was no arguable case to go to appeal. (2) H was entitled to its costs of opposing the application for permission to appeal. H put in a bill of costs for summary assessment in the sum of £54,487.50. The bill was disproportionate. Any doubts arising in the course of scrutiny of the bill were to be resolved in favour of the paying party (CPR r.44.4(2)). The bill was reduced on summary assessment to £16,195.

Permission refused.