One of the parties in a 14-year-long boundary dispute has avoided having to pay £27,000 in costs for an appeal, because the order he was appealing against said nothing about costs.

It is part of a string of litigation which has carried on despite most of the original parties to the claim having died.

The case, which began in 2010, was a boundary dispute where Madhu Kapoor sued her neighbours, Harchand and Gurdev Johal. Kapoor alleged the Johals had removed and destroyed a boundary fence and concrete posts which belonged to her and separated their homes in Hayes, Middlesex. She also alleged that there had been trespass to her property, and that foundations for a new wall had been dug on her land.

On 1 May 2018, a deputy district judge struck out Kapoor’s claim, for £10,000 damages plus costs, and ordered her to remove rubbish along the boundary of the two properties. Kapoor sought leave to appeal.

The Johals’ son, Baltaj Johal, who was occupying their home by October 2016, was the respondent, represented by RH Solicitors.

Kapoor died on January 30 2020 and her brother, Ashok Kapoor, carried out the appeal as the representative of her estate. Gurdev Johal also died around the same time.

On 4 February 2021, Judge Lethem made an order that Ashok Kapoor must apply to be substituted to the proceedings, which Kapoor did not do. 

Kapoor had emailed the court several times to say he did not have any internet at home, that he was grieving the loss of his sister and that he had ‘additional difficulties with the pandemic and lockdown situation’.

The judge made an order on 7 April 2021 to say the appeal had been struck out, but his order did not make any reference to, or provision for, costs.  

Kapoor appealed against the order, but his appeal failed and, on May 19 2022, Judge Lethem ordered him to pay costs of £27,000. 

In a judgment handed down in the High Court on Wednesday, Mr Justice Julian Knowles said Judge Lethem had not had the jurisdiction to order Kapoor to pay those costs. 

The Civil Procedure Rules provide that, where the court makes an order which does not mention costs, no party is entitled to costs in relation to that order, Knowles said.

He added that it may have been reasonable to have awarded costs against Kapoor, pointing out he and his sister had been responsible for ‘serious defaults in the conduct of the litigation’.

But he also said Johal’s lawyers ‘were not blameless, and had failed several times to comply with the CPR’.


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