Koshy v Deg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh: CA 24 Nov 2003

One party had been ordered to pay the costs of an unsuccessful attempt to discharge injunctions and strike out the action. The applications failed (badly) and the costs were ordered to be taxed and paid forthwith. Later there was a trial, and the previously unsuccessful party succeeded. That party then sought to appeal the original costs judgment out of time. The application failed.
Held: Mummery LJ observed: ‘The unusual feature of the case is that a successful defendant seeks, after final judgment in the action, to set aside and reverse on appeal an interlocutory order made before trial. I do not say that this is impossible in principle, but it is certainly a most unusual form of appeal in practice. In most cases interlocutory orders made in the course of proceedings cease to have any independent practical significance after the proceedings have been tried and final judgment entered. A court would not normally entertain an appeal after final judgment, attempting to reopen a costs order made inter partes at an interlocutory stage on the ground that the facts as found by the trial judge were different from what they were alleged to be at the date of the interlocutory order.’ and ‘ I have reached the conclusion that the appeal should be dismissed, though with some hesitation, as I do not regard the result as entirely fair or satisfactory.
‘ I start from the position that this is in substance an attempt, after the trial is over and in the light of the results of the trial and the findings made at it, to re-litigate an interlocutory costs order. No court, whether on an application to set aside at first instance or by way of appeal, is receptive to such an application. It is bound to be a difficult exercise for the court to review the exercise of a discretion made at an early stage where not all the evidence is available or all the facts known or even all the issues identified. As for the parties, more time will be taken up and additional costs incurred.
Harman J had exercised his discretion on the costs of the hearing to set aside freezing orders by taking into account all the circumstances of the applications. The court would not normally interfere with his discretion on costs unless it could be demonstrated that he had taken a wrong approach to the exercise of his discretion or had made an order which was plainly wrong.
This court is being asked to interfere with the exercise of his discretion on a very different basis. It is not being asked to look at all the circumstances in which he exercised his discretion or at his approach or at the result at the time of the order, but at one circumstance only: namely a comparison between (a) the affidavit evidence placed before Harman J. on the ex parte application for the freezing orders and the applications to set them aside on the issue of DEG obtaining knowledge about the profits made by Lasco and Mr Koshy; and (b) the findings of Rimer J. on that issue at the trial.
. . What this court is being asked to do is to cancel an order for costs, which was made in the exercise of the discretion by having regard to all the circumstances at that time, solely on the basis of what has transpired at the trial on an issue of disputed fact. . . in my judgment, it would be wrong and potentially unfair to DEG in these circumstances for the court to set aside the costs order made by Harman J. If the exercise of discretion is to be reviewed in circumstances of an alleged material non-disclosure with a view to making a different order for costs, it can only be fairly and satisfactorily done in this case by an application at first instance, in which the issues of fact are defined and on which evidence can be adduced by both sides about the circumstances in which the orders were made, including orders for costs.’


Lady Justice Hale Lord Justice Mummery Lord Justice Carnwath


[2003] EWCA Civ 1718




England and Wales

Cited by:

See AlsoDeg-Deutsche Investitions – Undentwicklungs Gesellschaft Gmbh v Thomas Koshy ChD 13-Dec-2004
The parties had been involved in protracted litigation where a freezing order had been made to support a claim which was eventually dismissed. The claimant sought to have set aside an earlier order made ordering him to pay costs on failing to have . .
See AlsoKoshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh ChD 20-Jan-2006
. .
See AlsoKoshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh and Another CA 5-Feb-2008
Application to set aside earlier order saying that it had been obtained by fraudulent misrepresentation or false evidence . .
CitedBusiness Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 19 November 2022; Ref: scu.188256