B2/2002/0946/A 
Neutral Citation Number: [2002] EWCA Civ 760
IN THE SUPREME COURT OF JUDICATURE                                   
THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight)
								Royal Courts of Justice
								Strand
								London WC2

								Monday, 13th May 2002
B e f o r e:

LORD JUSTICE JONATHAN PARKER

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BIBBY FACTORS (SUSSEX) LIMITED

Claimant/Respondent

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(1) SABUR REHMAN
(2) CHRISTOPHER KOSOWSKI
(3) ANJUM LATIF KHAN
(4) DAMSON HILL PLC
(5) DAISYHURST LTD
Defendants/Applicants
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR S COGLEY (Instructed by Messrs Tasselli, 55-56 St James's Street, London SW1A 1LA) appeared on behalf of the Applicants.

MR BITY BHALLA (Instructed by Hammond Suddards Edge, 7 Devonshire Square, Cutlers Gardens, London, EC2M 4YH) appeared on behalf of the Respondent.
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J U D G M E N T
Monday, 13th May 2002 
1.	LORD JUSTICE JONATHAN PARKER: This was to have been an application by Mr Rehman, the first defendant in the action, for a stay of one of the conditions on which a committal order made against him was suspended. The order in question was made by His Honour Judge Knight QC in the Central London County Court on 19th April 2002 in respect of the applicant's contempt of court in failing to attend court on that day to continue his cross‑examination by counsel for the claimant in the action, Bibby Factors Sussex Ltd, and in misleading the court as to the reasons for his non‑attendance. The judge made an order committing the applicant to prison for 90 days. However, he suspended the committal order on a number of conditions, the relevant condition for present purposes being that the applicant submit to a medical examination by a doctor of the claimant's choice by 14th May 2002: 
“...at a location and date specified to the First Defendant's solicitors Messrs Tasselli & Co. The First Defendant must be given 3 days notice of the date of the examination.” 
2.	The applicant appealed against that order. His appeal is pending before this court, no permission to appeal being required. 
3.	On or about 2nd May 2002 the claimant's solicitors, Messrs Hammond Suddards Edge, notified the applicant's solicitors, Tasselli & Co, that a medical examination had been arranged to take place, as I understand it, in Karachi on 8th May 2002 by a medical practitioner recommended by the British High Commission, a Mr Asad Pathan. 
4.	On 7th May 2002 - that is to say the day before the date fixed for the medical examination - the applicant applied to His Honour Judge Knight QC to stay the condition pending the hearing of his substantive appeal against the committal order. The judge refused that application and ordered the applicant to pay the claimant's costs of it. 
5.	The applicant then, as I understand it, applied to Chadwick LJ for a stay of the provision of the order relating to the medical examination, but Chadwick LJ refused that application on the papers. The application was due to be renewed today on notice to the claimant, but in the meantime the applicant has in fact undergone a medical examination (as arranged by the claimant's solicitors) on 8th May 2002. Accordingly, the present application has been overtaken by events and is no longer pursued. 
6.	The only live issue on the application is that of costs. 
7.	The claimant seeks an order for the costs of this abortive application to be paid by the applicant in any event. It was at one stage suggested that an order for costs might be sought against Messrs Tasselli & Co, but that has not been pursued. 
8.	Appearing for the applicant, Mr Steven Cogley of counsel submits that the right course is for the costs to be reserved to the court hearing the substantive appeal; alternatively, that the costs should be costs in the appeal. He submits that the court hearing the appeal will be in a better position to deal with the question of costs having had a full opportunity to investigate the circumstances in which the order was made. It will, he submits, have the complete picture before it rather than a snapshot as at a particular date. 
9.	Secondly, Mr Cogley relies on a passage in the transcript of the proceedings which took place before the judge on 19th April 2002 when the order was made. In referring to the terms of the order which the judge was proposing, the judge said this: 
“I am going to maintain that date of the 14th May [that being a reference to the date of the medical examination], but Mr Rehman will have some choice as to the location and date.” 
10.	Mr Cogley points out that the order as drawn allows no such flexibility for the applicant. 
11.	Thirdly, Mr Cogney submits that the motives of the claimant in seeking an order for payment of its costs of this application in any event is tactical in that it is seeking to place pressure on the applicant in relation to his funding of his defence, bearing in mind that the applicant is presently subject to a freezing order which contains restrictions on the amount which he may spend on legal representation and on funding his defence. 
12.	For my part, I can see nothing in those submissions to deflect me from taking the course which prima facie appears to be the only sensible course, which is to direct that the costs of this application should follow the event; the event being that the application has not been pursued. I can see no justification for postponing the resolution of the costs issue until the hearing of the appeal. 
13.	As to the passage in the transcript on which Mr Cogley seeks to rely, there was no application to the judge following the making of the order for any variation in its terms. Moreover, when the matter came back before the judge on 7th May 2002 an application for a stay was refused. That, it seems to me, entirely exhausts any substance which that submission might otherwise have had. Nor can I accept that there is a tactical motive in seeking an order for costs such as should lead to the conclusion that an order for costs should not be made at this stage. 
14.	Accordingly, for the reasons I have given, the applicant must pay the claimant's costs of the abortive application. 
Order: As above. Costs summarily assessed in the sum of £4,123.50, payable within 14 days.