Neutral Citation Number: [2012] EWHC 2636 (Ch)
Case No:  HC11C03442
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL

Date: Thursday, 21st June 2012

Before:

MR DAVID DONALDSON QC
Sitting as a Deputy High Court Judge
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B E T W E E N:

GUPTA & ANOR

and

UNION BANK OF INDIA & ORS

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Transcript from a recording by Ubiqus
Clifford’s Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
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MR GUPTA appeared in person
MR RATHMELL appeared on behalf of the First and Second Defendants (Instructed by Silk Route Legal Ltd)
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JUDGMENT (Approved)
DAVID DONALDSON Q.C.: 

1.	I am concerned here with proceedings which were begun under the Part 8 procedure, although it might have been better if they had been started under Part 7, because that would have produced pleadings which might have more clearly exposed the nature of the claims made by the claimants.
2.	I have however been greatly assisted by the presence here today of Mr Rajendra Gupta, the first claimant, who in a most articulate, courteous and intelligent way has assisted me in understanding  the real nature of the claim and the issues and has done so in what I find in the circumstances to be a remarkably balanced way to which I think tribute must be paid.
3.	There are in fact two claims. It may be that it would have been better had they been brought in separate proceedings, but since Mr Gupta was acting in person and doing his best and a very good best, he cannot be necessarily criticised for perhaps having not achieved the ideal procedural approach to this matter.  It is I think helpful to approach the two claims separately.  In relation to both of them I have got a number of applications before me, the first relates to the fact that some time ago the Master gave leave to serve the proceedings out of the jurisdiction on the first and the second defendants who are represented here today by counsel.  As I say, Mr Gupta appears on behalf of himself the first claimant, and the second claimants who are said to be trustees, of which he tells me that he is one although that is not actually spelt out in the title to the proceedings.  
4.	The first defendant is a well-known Indian bank.  The second defendant is the manager of one of its branches in Uttar Pradesh in India. The claimant’s father Mr K Gupta who died in 2004 in India held certain accounts with the Union Bank of India, all in Uttar Pradesh, though I gather in different branches of the bank in that state.  Some of the accounts were in his own name, of those which were in his own name Mr Gupta tells me that some were managed for the benefit of beneficiaries which I think include him and perhaps his two siblings.  Other accounts were in joint names and there is a question-mark as to the operation of the doctrine of survivorship in India.  I am told by Mr Gupta that there is also a question-mark as to whether that was removed during the lifetime of his father, a matter of which he complains.  
5.	The first relief that is sought in the application made by the first two defendants is a declaration that the proceedings have never been served, there being I think three possible ways by which theymight have been served.  It is said that it never was done.  For reasons which will become more apparent later, it is not necessary to address that and in a sense it is almost irrelevant because it would be possible simply to re-serve, though it may requirefor an extension of time for service of the writ which the claimants may or may not achieve.  Equally it was unnecessary to obtain an order for service out of the jurisdiction at least on the bank which is perhaps the main defendant because the bank has a representative office here in the City of London, that is to say an office which does not actually transact any business as I understand it, but is registered so it would always have been possible to serve the proceedings at least on the bank, though I well understand that it would still have been necessary for permission to be obtained for service out of the jurisdiction on the other defendant.  We are left with this position: as against the bank it is somewhat academic for me to decide whether leave to serve out of the jurisdiction should have been granted or whether I should uphold that grant or say that it was incorrect on the basis that for instance there was not a good arguable case or that the various gateways of the long-arm jurisdiction powers of the English court were not satisfied, though substantial arguments have been mounted in relation to those.  Really what matters is whether, if the proceedings were served on the bank in this country, the bank would be able as it thinks it is entitled to obtain a stay of the proceedings on the basis that the English court is not the convenient or appropriate court for the trial of this matter, and it should be dealt with in the court or courts of India and no doubt specifically Uttar Pradesh.  
6.	If the applicant bank was to be successful in that it follows I think almost automatically that the leave to serve out should be set aside in respect of the case against the bank manager Mr Saroyi[?] on the grounds that the further requirement of the long-arm jurisdiction sections of the CPR fail because it is not the proper jurisdiction.
7.	That is the way in which the matter arises before me and I therefore intend to address the question of whether the English courts or the Indian courts are the appropriate forum in which these proceedings should be brought.  I bear in mind in this regard that the burden is on the applicant bank, on whom I will focus initially for this particular purpose, to show that there is another and clearly more appropriate forum, sometimes called the natural forum, being the forum which has the most real and most substantial connection with the matters which are in dispute and which Mr Rathnell on behalf of the bank says is clearly the Indian courts.  That applies to both claims but I will deal with the claims separately.
8.	The first claim relates to the various accounts which were maintained by the father with the bank in Uttar Pradesh and they were bank accounts in his own name and in joint names, and those in his own name may have been either entirely for the benefit of other parties, who may have been all his children, or there may have been other beneficiaries, I know not.  There may be a question-mark as to whether or not survivorship rules would apply to those accounts held in joint names, but even if those rules apply there may be an issue as to whether the survivor holds on trust either in whole or in part for other parties, that is to say either the survivorship does not operate at the level of the beneficial interest or there are other possible beneficiaries involved.  Indian law, as I understand it from the impression I have received, is unlikely to be very different at least in its conceptual structure to English law but it may differ in certain respects in its detail.  Unless and until that is shown to be the case I am not really in a position to assume that it is any different.  
9.	The position then following Mr Gupta senior’s demise in India is that I am told, although I have not actually been provided with a sealed copy because there are logistical difficulties , that his last will and testament was dated 5th June 1996 and having revoked all previous wills and codicils he appointed as executors his son Mr Rajendra Gupta, the first claimant who was resident in Middlesex and Mr Manmahoon[?] Gupta and Madanahoon[?] Gupta who I understand to be the siblings of Mr Kidar[?], so the three children were appointed as the executors.  The will is of some simplicity, it just simply says that, ‘I leave all my estate to my three sons,’ this is Mr Rajendra, Mr Man and Madan.  
10.	There is no formal evidence of that will but for the moment I am prepared to proceed on the basis that Mr Gupta will be able to establish it.  There was an attempt made during the adjournment to obtain the copy from the Probate Department but apparently it has gone into deep storage.  The first sight that the bank was given, certainly in this country of that will according to  the bank though I think this is in dispute, was effectively this morning or yesterday.  That is not of any major importance but it does explain perhaps one potential misunderstanding which will surface later in the course of this judgment.  
11.	After the death of Mr Gupta senior in 2004 probate was I am told obtained appointing Mr Rajendra Gupta as executor, although it bears the endorsement ‘Other executors reserved,’ or words to that effect.  Again I have not seen a formal copy of that but I will assume for the purpose of this judgment that it is capable of being properly proved.  Again it was not possible to obtain a sealed copy of the probate from the department because the relevant file is in storage.  
12.	Undoubtedly that will was subject to English law in the sense that  its interpretation and validity will be governed by English law, regardless of the residence of the testatdor: in fact the will refers to the testator’s residence, although this is 1996, as 36 Prout Grove, Neasden, London.  Nothing turns on that because the will is in absolutely clear terms and there is no challenge to its validity.  The effect of the will in proprietary terms is undoubtedly that the grant of probate vested in Mr Rajendra Gupta as executor the title to any assets within the jurisdiction of the English courts.  That of course did not extend to the moneys in the accounts in India with the bank there and it is that that has given rise to the major point of difficulty between the claimant and the bank because the claimant armed with this probate has called upon the bank to pay out the moneys.  The bank however said that in India it is necessary to have what is called a succession certificate.  It appears that one is necessary where the estate is intestate and until recently and perhaps this morning the bank was simply not aware as it tells me that there was a will and indeed that there was a grant.  The revised position on the basis that there is in fact a will and indeed an English grant is that what would be required in India to be effective to vest the Indian assets in Mr Rajendra Gupta is that the Indian courts should make a grant to similar effect in his favour, although the general practice worldwide and no doubt within common law jurisdictions is that normally that would be a fairly automatic matter.  That has not yet happened and that is effectively how the difficulty between the parties arises.  The English law  seems to me to be accurately set out in the latest edition of Dicey, Morris and Collins on the conflict of laws under rule 132 where it is stated,
‘The following property of a deceased person vests automatically in his personal representative by virtue of an English grant:
(1)  Any property of the deceased which at the time of his death is locally situated in England.’

The commentary at paragraph 26-022 reads, 
‘All property of the deceased whether it consists of moveables or immoveables which at the time of his death is locally situate in England vests in the English personal representative… On the other hand assets outside England do not vest in an English personal representative by virtue of his grant. Whether or not he is entitled to recover them is a matter for the law of the country in which they are situate.’ 
 
13.	There are actually four cases cited in favour of that proposition, one which is a decision of the Privy Council in 1882, Blackwood v R [1882] UKPC 49 and there is a statement clearly to that effect in that case.  There is another case [Reefer v Fitzpatrick?] in which there are somewhat ambiguous dicta of Mr Justice Neville, although the matter went to the Court of Appeal which does not seem to have commented on that.  The editors of Dicey allude to these dicta but they say that the dicta will be found on analysis to be concerned with one or other of two rather different propositions: one, that an English personal representative actually obtains possession of foreign assets and is accountable for them in England as if they formed part of his English estate; secondly that if the deceased died domiciled in England the English personal representative has in most countries a generally recognised claim to a grant.  I am fairly clear that the statement in the Privy Council and the one which Dicey has lent its authority to is correct and in support of that I simply refer to the fact that in fact title to assets as a matter of the general principles of private international law is determined by the law of the place of location and there  is another though slightly more qualified principle that no act of state of court authority in England would normally be effective or purport to transfer  assets which are not within the English jurisdiction.  Moreover it would not help very much if the English court were to make an order on the basis that assets out of the jurisdiction were vested in the claimant while the foreign court was not prepared to agree to that because under its law they were vested in somebody else.  
14.	It appears to me that there are two possibilities: one is that the Indian law will say that automatically without the need for any grant or any court order in India the English grant has transferred assets in India.  That seems to me to be extremely improbable and certainly not something I can assume and act on.  The other is that there is a need for an Indian order, what was originally thought to be a succession certificate, but looks more likely to be a grant of probate in India. Certainly on the latter basis this claim is not properly constituted because the English executor, that is to say the claimant, just does not have title to the assets, but if that were wrong and there is a real issue as to whether the Indian law automatically transfers title, that would be a matter which would far and away be best dealt with by the Indian courts. It relates to title to property in India.  Moreover there are questions which may relate to accounts which are in the sole name of the claimant as to whether somebody else has got a beneficial interest in them.  I base that on what Mr Gupta says.  And there may be other further issues as to survivorship.  All that would clearly be better dealt with by the Indian court so as to sort out what the interests are in order that the moneys can be paid out to the right people.  
15.	If asked with which country the dispute has the most real and most substantial connection so as to make it the natural forum, I am in not the slightest doubt that it is India.  Moreover, it seems to me likely that currently the claimant does not even have a proper title to sue.  Were I convinced of the latter, the appropriate course might be just to strike out the claim in its entirety, but I think the better course is to stay the proceedings  
16.	Undoubtedly the Indian courts are available as a forum to hear this.  Mr Gupta suggests that he would not be able to obtain substantial justice there.  There was some reference to the length of time that court proceedings take in India but Mr Gupta has not demonstrated to me that whatever delays may or may not exist in the India system are such as to deprive the claimant of substantial justice, and I do not think that that amounts to a reason why I should refuse the stay.  
17.	Mr Gupta has also told me and the extent to which this is in evidence is perhaps open to debate, that he is concerned about his experiences since 2004 since the death of his father.  He has taken the view though others have disagreed, that there are serious grounds for suspicion that his father was poisoned rather than dying of natural causes.  He has asked for enquiries and it appears there have been responses, though there is a some difference between the parties before me as to the extent to which the authorities have responded.  Mr Gupta says that as a result of expressing himself in a perhaps very forceful manner he has been the subject of claims for malicious prosecution authorised by the local courts .  However that may be I have not heard anything which I think would make it right for me to say that it is at all likely that Mr Gupta would be deprived of substantial justice in the Indian courts as regards the matters raised in the present proceedings.  I remind myself that the issue here is a very technical one as to whether a further grant is required in India.  Mr Gupta was suggesting it may be difficult for him to get a grant and that he has difficulty in obtaining the succession certificate but that does not help him if without an Indian grant he cannot recover in England either.  In any event have no reason to believe on such evidence as I have that that is going to happen, or that he will be deprived of the opportunity to obtain substantially just treatment of a properly constituted claim against the bank in India.  
18.	The bank accepts that once an Indian grant is made it is bound to pay somebody, and all that it is concerned about is to ensure that all the relevant parties are before the court so that the moneys are paid out to all the correct parties.  At the moment I cannot see that the bank has any interest in procuring any other result but since all I am doing is staying the claim, if it turned out that there were some really serious matter Mr Gupta could not be prevented from coming back to this Court and saying that he wanted to revive the English proceedings because of further developments which meant that substantial justice could no longer be obtained in the Indian courts.   There would of course still remain the hurdle of title to sue.
19.	The second claim is brought by, as it is simply said, the trustees of the [Inaudible] Islami[?] Ashram Trust.  Though I say claim form should have spelt out who are suggested to be the trustees, I understand it they are Mr Rajendra Gupta and his two siblings to whom I have referred above.  The complaints as it was explained most lucidly to me this morning by Mr Gupta include a complaint against the third defendants who are also resident in India but who have not appeared to make any kind of acknowledgement of service or let alone make any submissions or any applications before me.  Those complaints relate to two trust properties which are referred to as ashrams.  As to the trust in question I have a typed copy of a trust deed made on 22nd April 1985.  It is a settlement trust under which Mr Gupta senior’s wife, that is to say the claimant’s mother, settled on three trustees various properties, the three trustees being the father, the mother and another gentleman who may have been the claimant’s uncle or something of that sort.  The settled property consists of property transferred to them in the form of land in [Ramaraita, Vundervan?] together with £1,000 in cash.  The trust a religious benevolent trust to assist in the maintenance of an ashram for the public in general ‘…having faith and an ayurvedic way of life according to Lord Chaitanya’s philosophy for the attainment of peace and salvation.’  There are other various charitable aims.  The trust was to be known as the [Bactividan Peshwani?] Ashram Trust with a number of trustees not less than three and no more than seven.  It was a trust which was executed in India, it relates to property in India, and it has got various references to the Income Tax Act which is plainly the Indian Income Tax Act and to the ‘…powers conferred by the Indian Trust Act.’ 
20.	Though I am not sure that it is relevant, it is plainly governed by Indian law and is an Indian trust because it is a trust of Indian property.  The three trustees are long since dead and that raises a problem as to who is ostensibly suing in the present proceedings.  Mr Rajendra Gupta tells me but it is not in evidence that there was an addendum executed in the 1980s or early ‘90s which varied the trust by appointing a further three trustees.  That is perfectly plausible, it would have been a sensible thing to do given the age of the existing trustees but I have not seen this document.  On present evidence I have got no material on which I can conclude that the proceedings are at present properly constituted.  
21.	If however I were to put that objection on one side and assume that it will be possible to establish that there are currently trustees and that the trustees are the three people who it is said are acting at the moment including Mr Rajendra Gupta, I would need to look at the nature of the complaint.  
22.	Mr Gupta suggested to me that this matter was all English.   In particular he relied on a prior trust deed which is not in evidence, and I am not sure there even is a copy of it, which he said was made in England.  Even assuming such a prior trust deed, I cannot see that makes any difference, because the trust property was settled by the 1985 document to which I have just been referring.  I also ought to record that the fact that in the autumn of 2011 the three ‘trustees’ executed another trust deed in England, but I cannot see that that affects the existing trust deed in any way or moved any of the existing trust property from the previous trust.  
23.	I turn now to the nature of the complaint.  It relates to the first property which was actually transferred to the trust at the time of settlement which I shall call, ‘the first property’ and to another property which I shall call, ‘the second property’ acquired by the trustees at some stage later under their powers of acquisition and management.   Although this does not appear at all clearly from the proceedings at presently constituted Mr Gupta told me this morning that the real gravamen of the allegation is that the property was sold by the bank manager at an undervalue and it is said the inadequate proceeds were passed to the bank and held by the bank.  The trustees wish to recover these proceeds.  Turning to the second property it is said that that was occupied by the second defendant and the third defendants [Chan Singh?] Gupta and Seema[?] Gupta although the second defendant has now gone and it continues to be occupied by the third defendants alone, it is said as agents of the second defendant.  There is a further complaint that the paraphernalia in the property had been removed or perhaps damaged or whatever.  That if true would give rise to a claim on the part of the registered owner of the two properties because Mr Gupta tells me t all property in Uttar Pradesh and certainly these properties are registered properties.  Whoever is the registered owner of these properties would have the ability to sue, assuming that the allegations are correct, and to say that the property has been occupied without its consent, if that is the case, without any rent being paid, that it has been sold behind the registered owner’s back, that the moneys are held by the bank and are recoverable by the registered owner and if there is a shortfall and the bank is involved in that that it should be liable for having participated in a wrongful disposal, and if it is just the second defendant that did this that he should be liable to account.
24.	When I asked who was the registered owner Mr Gupta told me he did not know but he thought it might be his father.  In that event it is not the trustees who would have the title to sue, it would appear to be his father and since his father is dead we come back to the question of: has title been vested in Mr Gupta as executor?  That question which I have already addressed in relation to the moveable property in the form of the deposit accounts applies if anything more firmly in the case of real estate.  
25.	At the moment I am far from persuaded that as matters stand there is any title whatsoever here to sue in England, but more than that it appears to me that all these are questions which are really matters for the Indian court and the nature of the disputes in this regard is such as to make the matter one which has its most real and substantial connections with the courts of India.  I repeat what I said in relation to the first claim that I do not have any material which would satisfy me that there was a likelihood that substantial justice could not be done.  Since I am not today going to make an order, not least because there is no application for it striking out the proceedings, I will simply make a stay and add the same comment that if the courts of Uttar Pradesh can be demonstrated as a result of future developments to be entirely irresponsible and unfair to a level which satisfies the requirements set out in the English case-law as to deprival of substantial justice there is no order that I could make which could preclude an application to lift the stay, but it would obviously require evidence to the level indicated by the English cases.  
26.	I propose therefore to stay both claims.  As against the second defendant it follows also for similar reasons that England is not the natural forum in the sense in which I have used that phrase and it is expanded in the case-law, and so the claim must be set aside for that reason.  I will also indicate, though we have not gone into it in the course of the hearing before me, that it is very unclear to me that there was any available gateway to support the claim against Mr Saroyi[?], quite apart from the question of appropriate forum.  I also indicate that it is completely unclear to me that there was a gateway against the bank, but that is a matter of irrelevance since no leave to serve out of the jurisdiction is necessary.  Mr Gupta can merely walk down the road to the City.
MR GUPTA:  Could I…?
JUDGE DONALDSON:  Yes, what do you want to say?
MR GUPTA:  I just wanted to say that there was one document in the bundle which I didn’t take you to. 
JUDGE DONALDSON:  What does it say? 
MR GUPTA:  Essentially it’s a document where the bank refuses to accept service. 
JUDGE DONALDSON:  Oh, you mentioned that to me, but that is…
27.	Even if he had in fact effectively served them, which I think is what he is trying to suggest to me now, at the representative office so as to complete the proceedings by service, my stay would apply even if that were the case, which I do not need to decide.  
Have I covered all the areas, Mr Rathmell?
MR RATHMELL:  My Lord, yes.  It’s just any submissions on the form of order. 
JUDGE DONALDSON:  No, no, I follow that, but I- 
MR RATHMELL:  Yes. 
JUDGE DONALDSON:  -have I covered all the arguments and counter-arguments? 
MR RATHMELL:  My Lord, Mr Gupta’s saying to me ‘domicile.’  I believe that it might be anyway that the terms of your judgment made it clear that you didn’t regard that as an issue that called for determination. 
JUDGE DONALDSON:  No, but that is absolutely right.  I do not see the question of domicile as impacting on any issue in this case or what his domicile was at the date of death I think would require an exploration of the facts which, since it is unnecessary and would I think take up a very considerable time, I am not proposing to engage upon.
	Is there anything else, just so that nobody suggests that the judge has not addressed some argument?
MR GUPTA:  I’m just concerned about where we go from here?
JUDGE DONALDSON:  Well that is alright.  So there will be an order which stays the two claims.  
MR RATHMELL:  My Lord, yes.  My immediate concern coming from that is of course this application is only made on behalf of the first and second defendants. 
JUDGE DONALDSON:  Yes. 
MR RATHMELL:  There’s nothing theoretically from the stay stopping Mr Gupta seeking to enter judgment in default against the third defendants. 
JUDGE DONALDSON:  Well I… but you do not represent them? 
MR RATHMELL:  I don’t, but what I was going to propose to Your Lordship was that there be some wording in the order that makes it clear that judgment can’t be obtained against the third defendant if that affects the stay against the first and second defendants. 
JUDGE DONALDSON:  I do not understand that. 
MR RATHMELL:  For example, if judgment in default was obtained against the third defendant in relation to her alleged conspiracy with the second defendant that might have adverse consequence on the second defendant- 
JUDGE DONALDSON:  Well you can argue about that in due course.  I am not going to make any order.  They have not asked for a stay, I cannot order it off my own bat and so I am not going to order that. 
MR RATHMELL:  Right. 
JUDGE DONALDSON:  Now where do you go from here?  Well, the proceedings are, I take them claim by claim but the proceedings are stayed as against the first two defendants.  Do you obviously need an order for costs? 
MR RATHMELL:  My Lord, yes I have no further orders on the substance of the terms of the order and I [inaudible] my costs on the basis that they simply follow the event. 
JUDGE DONALDSON:  Right now Mr Gupta, what do you want to say to me?
MR GUPTA:  I’d like to say a few points on costs. 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  The two bundles which have been supplied- 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  Well I’ll just deal with how they were supplied and also- 
JUDGE DONALDSON:  Well, why does that matter? 
MR GUPTA:  I’m sorry? 
JUDGE DONALDSON:  Why does it matter? 
MR GUPTA:  Because the documents in these bundles have not been… it was unnecessary to supply these documents. 
JUDGE DONALDSON:  Oh, this is on costs is it? 
MR GUPTA:  Yes. 
JUDGE DONALDSON:  Yes, I am sorry.  That is why I am asking you what it goes to. 
MR GUPTA:  Yes. 
JUDGE DONALDSON:  There are two things.  One is if we are dealing with costs, right, the first question is whether in principle he gets his costs, Mr Rathmell on behalf of his two clients and then there will be a subsidiary question as to the quantum of those costs.  Are you asking me to assess some of them, because- 
MR RATHMELL:  I am.  A schedule was emailed to Mr Gupta- 
JUDGE DONALDSON:  Right, okay.  So far as the detailed amount is concerned, we can look at that in a second, but at the moment he has been successful in setting aside the order and in obtaining his stay and the normal result would be that the bank and the two successful defendants would recover the costs. 
MR GUPTA:  What I’m saying- 
JUDGE DONALDSON:  The amount of the costs we will look at in a moment.  
MR GUPTA:  What I say to the first point- 
JUDGE DONALDSON:  Yes, quite. 
MR GUPTA:  -on the stay itself, the- 
JUDGE DONALDSON:  Sorry, on the first point, on the costs you mean? 
MR GUPTA:  Yes, on the costs.  
JUDGE DONALDSON:  Yes, I see. 
MR GUPTA:  Even though they obtained the stay the history of this matter simply shows that although they’ve obtained a stay costs nevertheless, I invite Your Lordship to consider whether a costs order should be made even though they have obtained a stay. 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  Simply on the basis that the co-operation, the co-operation which… they obtained an extension of time, first of all they lodged an acknowledgement of service five months after it was issued then they obtained- 
JUDGE DONALDSON:  But you are pre-supposing that they were served, were you not? 
MR GUPTA:  Well- 
JUDGE DONALDSON:  Alright, okay.  What is the next point you want to make in regard to that? 
MR GUPTA:  The level of co-operation in relation to the documents.  I appreciate they say that they saw the will for the first time today and- 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  -I’m simply saying that all these documents were within the bank’s knowledge in the many, many trips that I went, made to India. 
JUDGE DONALDSON:  But they had to come here to get the order. You were not prepared to agree to this, you fought the order.
MR GUPTA:  Yes. 
JUDGE DONALDSON:  Yes.  You see, that is the point, I mean- 
MR GUPTA:  Well- 
JUDGE DONALDSON:  -if you had put your hand up at some stage and said, ‘Alright, I’ll give in.  I am not prepared to pay your costs.’  That would be another matter, but they have had to come all this way an engage in a lengthy argument before me to obtain the order which you have resisted right up to the end, which is your entitlement, but the normal consequence is that you have got to pay the costs of resisting that. 
MR GUPTA:  I’m simply trying to assist the other side and the Court in relation to the insuperable difficulties which I haven’t overstated in any shape or form. 
JUDGE DONALDSON:  No, I follow that. 
MR GUPTA:  And the level of co-operation with the other side and with the Court has not been reciprocated in a meaningful way and although they’ve- 
JUDGE DONALDSON:  Sorry, what do you say is a meaningful way? 
MR GUPTA:  Well, understanding that the processes of obtaining the letter of administration the will exists and therefore the real need for a succession certificate under Indian law was not applicable and it’s… everyone has learnt a great deal about what the issue is and what the problem is and if they’ve obtained stays in India, which they have and they say that I’ve taken out injunctions, I’ve taken out no injunctions- 
JUDGE DONALDSON:  I paid no attention to that. 
MR GUPTA:  I appreciate that.  Where we’re left, what we’re really left with and I have to accept what you’re saying, the stay now of these proceedings and there’s a stay of the Indian proceedings- 
JUDGE DONALDSON:  Well, a stay of the Indian proceedings? 
MR GUPTA:  Yes. 
JUDGE DONALDSON:  But there are not any Indian proceedings? 
MR GUPTA:  Well, the… I didn’t actually take you through the documents but these two bundles- 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  -are actually… what they go to by the third defendant in support of the- 
JUDGE DONALDSON:  Sorry, are you saying, because nobody has told me this so far, that there air claims in India brought by you against the bank for this money? 
MR RATHMELL:  My Lord, I did refer to those during the submissions.  The point is the bank, it’s the injunction proceedings brought by Mr Gupta naming the bank, the second defendant and the third defendant.  Only the third defendant has been served with those proceedings and only the third defendant has played an active role.  She and Mr Gupta ear engaged in a contested stay and transfer application out there, but the bank knows nothing of- 
JUDGE DONALDSON:  So you have not been sued for the money at all? 
MR RATHMELL:  Well the proceedings have been issued but they’re not actively being pursued against the bank in India. 
MR GUPTA:  That’s not quite correct.  The substance really is that when complaints were lodged, judicial complaints were lodged in India the second defendant, third defendant and the first defendant who are named as parties, they obtained stays.  Now the stay was obtained by the third defendant and in the- 
JUDGE DONALDSON:  A stay, on what grounds? 
MR RATHMELL:  Well, the documents are in evidence. 
JUDGE DONALDSON:  Well just take me to them because I have no knowledge of this at all.  
MR GUPTA:  So there are stays in two jurisdictions. 
JUDGE DONALDSON:  Just one moment.  Mr Rathmell is going to take me to them.  Where are they? 
MR RATHMELL:  If we go firstly, My Lord, to application file one. 
JUDGE DONALDSON:  Mm-hmm.  Yes, page? 
MR RATHMELL:  Page 136. 
JUDGE DONALDSON:  Yes. 
MR RATHMELL:  This is a translation.  Again I point out that the translations aren’t agreed but- 
JUDGE DONALDSON:  Well- 
MR RATHMELL:  -endeavour- 
JUDGE DONALDSON:  -well we can probably get the sense of it. 
MR RATHMELL:  -the flavour.  These were the proceedings issued in Mathura by- 
JUDGE DONALDSON:  Just a second. 
MR RATHMELL:  I’m sorry.  
JUDGE DONALDSON:  ‘Order on the application of Sesun[?] Gupta etc. against Rajendra Gupta issue notice.’ 
MR RATHMELL:  You- 
JUDGE DONALDSON:  It is alright.  ‘In the court of the civil judge Rajendra etc. against Seema, Charan[?], Tavaz[?], Anje[?], Kumar[?], Union Bank etc states…’ 
MR RATHMELL:  And then he goes on to make some of the same allegations he’s repeated in his submissions today.  Page 138 is instructive, paragraph 11. 
JUDGE DONALDSON:  Well, what the claim is, ‘…that the defendants be restrained from interfering in the peaceful possession of the plaintiff.’  Yes.  That is a- 
MR RATHMELL:  That’s, yes- 
JUDGE DONALDSON:  -at 141? 
MR RATHMELL:  That’s the relief from- 
JUDGE DONALDSON:  So there is no claim for the money or anything? 
MR RATHMELL:  Not directly, just an injunction. 
JUDGE DONALDSON:  It is just saying, ‘Get off my lawn.’  
MR RATHMELL:  Yes, and it’s the bank’s position, I understand- 
JUDGE DONALDSON:  Sorry, you say that has been stayed? 
MR RATHMELL:  Yes.  Again I emphasise the bank hasn’t played a part in this. 
JUDGE DONALDSON:  Yes, alright. 
MR RATHMELL:  Perhaps because it’s only named for the purposes of the relief rather than anything else. 
JUDGE DONALDSON:  Right. 
MR RATHMELL:  The stay application is at 152-156 or rather the translation of it, in the same tab, My Lord. 
JUDGE DONALDSON:  Just a second.  ‘The allegation was wrong etc. etc.’ Actually what does it say, just looking at all this. 
MR RATHMELL:  It points out in paragraph six there they didn’t serve notices on defendants number two-six. 
JUDGE DONALDSON:  Well if he does not come with clean hands there is no [inaudible].  There do not seem to be grounds for dismissing the claim? 
MR RATHMELL:  That’s what it seemed to me as, but what happened was a transfer application to move it from Mathura, because Seema Gupta is dissatisfied with the courts in Mathura, a transfer application- 
MR GUPTA:  And- 
JUDGE DONALDSON:  Just a moment. 
MR GUPTA:  Sorry. 
MR RATHMELL:  -Seema Gupta made an application which is in, if you go to application file two, My Lord. 
JUDGE DONALDSON:  Page? 
MR RATHMELL:  Page 382. 
JUDGE DONALDSON:  382, in the middle one? 
MR RATHMELL:  Sorry, yes. 
JUDGE DONALDSON:  It starts off- 
MR RATHMELL:  That’s just the reasoning for it.  It starts at 377. 
JUDGE DONALDSON:  Which is the order, right? 
MR RATHMELL:  That’s the- 
JUDGE DONALDSON:  That is not the order. 
MR RATHMELL:  No, that’s not- 
JUDGE DONALDSON:  Where is the order? 
MR RATHMELL:  -that’s the affidavit, I’m just explaining why Seema Gupta apparently made this, and all I have to go on is this affidavit. 
JUDGE DONALDSON:  Sorry, you were showing me 382? 
MR RATHMELL:  382 paragraph 18. 
JUDGE DONALDSON:  Right, okay.  I have seen that, yes. 
MR RATHMELL:  That basically says there’s various… Seema Gupta says, I’ve absolutely no idea of knowing whether these allegations are- 
JUDGE DONALDSON:  Exerting pressure on the court itself, yes. 
MR RATHMELL:  The parties seven, eight, nine who I believe Seema Gupta says are Indian lawyers who exert influence over Mr R Gupta, the claimant here. 
JUDGE DONALDSON:  Alright, so he wants it transferred.  Where is the stay? 
MR RATHMELL:  The stay then is at- 
MR GUPTA:  If it helps Your Lordship- 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  -when the complaint’s been lodged the second defendant Mr Saroyi and Seema said they want indefinite stays in relation to my complaints in Mathura and they- 
JUDGE DONALDSON:  Because they want it transferred to another court? 
MR GUPTA:  Well that ostensibly they want it transferred to another court and then when it went to another court they got stays from there, so my- 
JUDGE DONALDSON:  Sorry, just a second.  So have these proceedings been transferred from Mathura to another court? 
MR RATHMELL:  That application hasn’t been dealt with yet because there’s been several hearings, the bank and the second defendant don’t know anything about it. 
JUDGE DONALDSON:  You do not know anything about it? 
MR RATHMELL:  We don’t know where- 
JUDGE DONALDSON:  As I understand it, the stay is in the context not of what I call a substantive stay, right, but in the context of saying that, ‘While we sort out whether it is transferred no further proceedings to be taken in Mathura.’  Is that right? 
MR GUPTA:  But the effect of that, I think you’re right- 
JUDGE DONALDSON:  Is that right, yes? 
MR GUPTA:  I think you’re right.  The issue of prejudice in relation to all this is they’ve got stays left right and centre- 
JUDGE DONALDSON:  Well, left right and centre, you may be straying from your customary moderate language. 
MR GUPTA:  Okay. 
JUDGE DONALDSON:  There is a stay which is a purely procedural stay while the two courts sort out whether it should be transferred from Mathura to whatever the other court is.  I do not know what it… what is the other…? 
MR GUPTA:  Illabad. 
JUDGE DONALDSON:  Illabad or Allahabad. 
MR GUPTA:  Allahabad. 
JUDGE DONALDSON:  Allahabad?  So it is not the courts are saying, ‘We are not going to hear this,’ it is just a case of which Indian court should hear it given that one of the defendants is saying, ‘I’m not very fond of my local court.’ 
MR GUPTA:  And that is actually defendant number two who’s saying that, in- 
JUDGE DONALDSON:  Well- 
MR GUPTA:  -association with defendant three. 
JUDGE DONALDSON:  -I, anyway- 
MR GUPTA:  That doesn’t matter. 
JUDGE DONALDSON:  That is the only stay there is in the proceedings, though? 
MR GUPTA:  And all the issues of complaints which were made in relation to the father’s death and trying to- 
JUDGE DONALDSON:  So you are already suing the second and third defendants- 
MR GUPTA:  No- 
JUDGE DONALDSON:  -in relation to one of the properties? 
MR GUPTA:  No, I’m not- 
JUDGE DONALDSON:  Yes you are. 
MR GUPTA:  -what I’m… I’ll be accurate and also moderate in my language.  
JUDGE DONALDSON:  Do not worry about it. 
MR GUPTA:  Complaints have been lodged against the first, second, third defendants in India which is very [inaudible].  It would be unsurprising… that’s not surprising, and then all those complaints have never been adjudicated and what has happened, My Lord- 
JUDGE DONALDSON:  Well, the complaint is in relation to the position of one property? 
MR GUPTA:  That is certainly true. 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  But I’m making a general point which is that- 
JUDGE DONALDSON:  Well, I do not- 
MR GUPTA:  -you have a judicial system- 
JUDGE DONALDSON:  No, no, we are not going back over that.  I just wanted to make sure there was not an element… I mean if anything Mr Rathmell could have prayed it in aid as he did in his skeleton as saying that at least to some extent in relation to the second claim the Indian courts have already been involved. 
MR GUPTA:  Yes. 
JUDGE DONALDSON:  But since it is to a very limited extent I think the fact that I did not refer to it in my judgment is not going to be of great significance either way.  
MR RATHMELL:  I think it would only be a matter that I can rely on. 
JUDGE DONALDSON:  Yes, but if anything to the limited extent that it operates, it would operate I think in favour of the grant of the stay, but I am perfectly happy to leave the judgment uncomplicated by that minor matter.
	Now, so costs can we go back to costs please?  You have made various submissions as to why you say he was unco-operative etc.  Is there anything more you want to say on costs? 
MR GUPTA:  I just- 
JUDGE DONALDSON:  Apart from quantum, which we will deal with in a second. 
MR GUPTA:  I’m just deeply troubled that we’re not moving forward and co-operation hasn’t been forthcoming in the context of a very, very sad death which has been characterised as suspicious and it’s… it’s deeply, deeply troubling that yet another stay is being applied and costs have been associated with that.  I think the principle fairness requires perhaps… I appreciate the stay is going to be applied but I simply don’t… I’m unable to accept that a costs order should follow from the stays in the most traumatic of circumstances.  Hundreds and thousands of hours by myself and others have been spent in India in trying to resolve this problem, and we’re still struggling and we’ll continue to struggle and it’s, you know, I appreciate Mr Rathmell has said that this is the first time we’ve looked at the will.  It’s certainly not, from their perspective it may be the first time, but I’ve gone to India many, many times in many, many jurisdictions and it takes hundreds and hundreds of hours to get there for a 10 minute meeting with officials who just throw us out of their offices and you know he’s made references to the Ombudsman, bank and so on and while I appreciate we’ve resisted the application I think if I could persuade Your Lordship not to make any costs order that would be if you like a realisation of a truth which still hasn’t been identified or addressed either in the Indian forum or here.  I’m applying no criticism but all the parties are very polite to you in your presence.  You really ought to see what they’ve been saying and doing behind the curtains, phoning- 
JUDGE DONALDSON:  Well, I am not sure I- 
MR GUPTA:  -I don’t say- 
JUDGE DONALDSON:  -I am not sure I can really go into that.  
MR RATHMELL:  My Lord, sorry, just before you give judgment on the costs issue I should in fairness to Mr Gupta so he can make representations point out that you’ve heard recently about the fact that there was an application for an extension of time to make this application?  
JUDGE DONALDSON:  Well I am not sure whether the…sorry, what is the point? 
MR RATHMELL:  The point is that Master Teverson reserved the costs of that application which are much smaller than the costs of this- 
JUDGE DONALDSON:  Well- 
MR RATHMELL:  -he said that the costs should be part of this and I make that- 
JUDGE DONALDSON:  Well, you draw my attention to that.  
Well, I too regard the need for this litigation and the way it has come about as extremely unfortunate, not least because it may turn on procedural matters such as the grant of probate in India, but at the end of the day I can see no reason to depart from the normal rule that the successful defendant should have his costs and I propose to order… now, you have got a schedule there? 
MR RATHMELL:  Indeed. 
JUDGE DONALDSON:  And you tell me that the costs of extension of time for making this application were reserved? 
MR RATHMELL:  They were reserved to you by Master Teverson. 
JUDGE DONALDSON:  Yes. 
MR RATHMELL:  They’ve been included in that statement of costs. 
JUDGE DONALDSON:  On what basis am I supposed to decide whether or not they should be included?  I mean, the Master knew a lot more about the circumstances of the application than I do.  
MR RATHMELL:  I’m sorry, My Lord? 
JUDGE DONALDSON:  The Master made, I am not quite sure why the Master referred them to me, I mean, if he said they should be included in the costs- 
MR RATHMELL:  Yes, indeed. 
JUDGE DONALDSON:  -that is not the same thing. 
MR RATHMELL:  It’s not.  A colleague of mine attended the hearing.  My only submission on that is that the extension of time was granted and was for an application that was successful. 
JUDGE DONALDSON:  Well, I do not… which was successful, yes. 
MR RATHMELL:  Which lead – both the extension and this application have been successful.  The extension of time was just to get the necessary evidence together. 
MR GUPTA:  And that evidence did not come within the- 
JUDGE DONALDSON:  Well, we will deal with that in a moment. Yes, as I say, well, doing the best I can on the reservation and having seen the nature of the material that has had to be produced and analysed I think I will treat the costs as included effectively in today’s so I will make an order in respect of those costs in your favour as well.  Unless there is some reason why I should not make that order for costs in relation to that earlier application, Mr Gupta? 
MR GUPTA:  Yes, indeed. 
JUDGE DONALDSON:  What would you say?  At the moment, as I say, my inclination would be to do so.  
MR GUPTA:  What I would say is that Master- 
JUDGE DONALDSON:  Teverson. 
MR GUPTA:  -Teverson was, from my interpretation and understanding, was first of all it was an ex parte application and in that ex parte application they- 
JUDGE DONALDSON:  Oh, so you were not there? 
MR GUPTA:  No, and I wasn’t given notice, and in subsequent communication I did say that they can have an extension of time if they only asked me, because I think it was just fair to the opposing side to give them time, and I would, and I’ve said this- 
JUDGE DONALDSON:  I see, so Mr Rathmell what is being said is that he would have been prepared to give you time? 
MR RATHMELL:  That’s, I have to say, My Lord, firstly the reason why it was made ex parte was because the application had to be made before the period of time for acknowledging service. 
JUDGE DONALDSON:  Well it was, but- 
MR RATHMELL:  Actually it was, I personally think it was quite sly.  Mr Gupta didn’t offer an extension of time to make a jurisdiction challenge, he said the only extension of time he would offer would be for the bank to put in an answer to the claim.  If the bank had done that it would have waived its jurisdiction challenge. 
JUDGE DONALDSON:  Oh, I see.  Well, you hear what he says, Mr Gupta.  
MR GUPTA:  Well the fact remains co-operation between the parties does allow for extension of time and I would have certainly have allowed.  
JUDGE DONALDSON:  Well he said all you were prepared to give an extension to was to put in a defence to the claim, not to make a jurisdictional challenge. 
MR GUPTA:  I follow that, I follow that but even when that order was made there was breaches of that order in compliance and the- 
JUDGE DONALDSON:  Well I am just concerned with the costs of that order. 
MR GUPTA:  And the… well we haven’t come to the quantum but- 
JUDGE DONALDSON:  We will come to the quantum in a moment.  Right well I think in the circumstances my preliminary view has not been swayed by what Mr Gupta has just said so I will make an order in respect of those.  Now the costs. 
MR RATHMELL:  My Lord, the first thing I notice is an inversion between the size of my costs and the size of my solicitor’s costs.  The solicitor’s costs are, for an application of this size, well, very, very small, I have to say, in a High Court application of this nature, £5,300 is- 
JUDGE DONALDSON:  I am not looking at the total, I am just looking at the average. 
MR RATHMELL:  I think the point the statement of costs is trying to make is that in a way that is beneficial to Mr Gupta that solicitors did the case at a fixed fee for- 
JUDGE DONALDSON:  Oh, I see. 
MR RATHMELL:  -the bank.  If they’d been charging their normal hourly rates- 
JUDGE DONALDSON:  Oh I see, so the- 
MR RATHMELL:  -it would actually have been a lot more. 
JUDGE DONALDSON:  Oh I see.  ‘…for the above has been £5,300.’  Yes, I see. 
MR RATHMELL:  So that fee is a good- 
JUDGE DONALDSON:  Do you mean if I apply the hourly rates to those timings I would arrive at much more than £5,300? 
MR RATHMELL:  Yes, I believe that’s right. 
JUDGE DONALDSON:  How much, just in…? 
MR RATHMELL:  I’m being told substantially over.  The calculation’s going to be done while- 
JUDGE DONALDSON:  Yes, okay.  Alright.  ‘Preparation 26.’  Okay.  Who is Mr Gareth Tilley? 
MR RATHMELL:  Mr Gareth Tilley, he actually- 
JUDGE DONALDSON:  He went along to get the- 
MR RATHMELL:  I did the preparation for that hearing and the witness statement for the extension of time. 
JUDGE DONALDSON:  Mm-hmm. 
MR RATHMELL:  Mr Tilley, I was double-booked or out of the country. 
JUDGE DONALDSON:  Okay, that is fine.  That explains him.  Right. 
MR RATHMELL:  And I accept in relation to my fees it’s really a bit of the inversion point I was making. 
JUDGE DONALDSON:  Yes, alright.  Right, Mr Gupta, what are you saying is unreasonable about..? 
MR GUPTA:  Well there’s only two or three letters.  I can take you to them if you like. 
JUDGE DONALDSON:  Two or three littered? 
MR GUPTA:  Letters, which are exchanged between the solicitors and myself, and- 
JUDGE DONALDSON:  Yes, what about telephone calls?  Were there discussions? 
MR GUPTA:  The telephone between… I think there was one or two telephone calls between the parties, myself and… one I was returning a phone-call they returned- 
JUDGE DONALDSON:  So what you are querying is the item which is, ‘Attendance on the claimants for the defendants’? 
MR GUPTA:  I’m actually querying… what, I’m querying the £5,000, well- 
JUDGE DONALDSON:  No, the bit that you are querying is where they say at the time of the page, ‘Attendance on the claimant for the defendants.’ 
MR GUPTA:  Yes. 
JUDGE DONALDSON:  ‘including [inaudible] party correspondence.’  And you get 7.5 hours and 8.75 hours.  You are querying that, are you? 
MR GUPTA:  Indeed, because- 
JUDGE DONALDSON:  Because you say, ‘There was only a couple of letters and almost no phone-calls.’ 
MR GUPTA:  That’s correct, that is factually correct. 
JUDGE DONALDSON:  No, no, I am just trying to get the- 
MR GUPTA:  And then- 
JUDGE DONALDSON:  -letters and few phone-calls. 
MR GUPTA:  In terms of the preparation, in terms of preparation [inaudible] documents- 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  -there’s one affidavit of [Tina Deep Akhtar?] and- 
JUDGE DONALDSON:  Well they have got to put all the documents together, they have got to review them, they have got to produce them- 
MR GUPTA:  What I am trying to say is that it was an ex parte application, possibly lasting- 
JUDGE DONALDSON:  No, no, this is for the entire thing.  This is for the entire matter. 
MR GUPTA:  You see, £29,000 which they are asking on- 
JUDGE DONALDSON:  Yes, but what I am looking at is the individual… has anyone given you a figure as to what the £5,300 would come out to? 
MR RATHMELL:  I’ve approximated it, taking the lower of the hourly rates.  If it was all £200 instead of some being at £250 and rounding down the hours it would be £16,000.  I think it’s fair to say it’s likely to be a few thousand more than that but that gives you an indication of- 
JUDGE DONALDSON:  Well, quite.  You see, if I was just to strike out the entirety of the attendance, the first thing, it would still be way in excess of that.  
MR GUPTA:  I’m not cringing or anything, I’m just- 
JUDGE DONALDSON:  No, no.  You must not feel reticent on that ground. 
MR GUPTA:  I’m just horrified- 
JUDGE DONALDSON:  Indeed.  I’m afraid costs do run up in a very big way.  
MR GUPTA:  It’s just complete incredulity- 
JUDGE DONALDSON:  Yes, well- 
MR GUPTA:  -in relation to- 
JUDGE DONALDSON:  -to the size of costs.  I well understand that. 
MR GUPTA:  All we’re talking about is a two-and-a-half hour hearing today which has overrun and I’ve had no further dealings in relation to- 
JUDGE DONALDSON:  Well I can see your argument about- 
MR GUPTA:  This is- 
JUDGE DONALDSON:  -I can see your argument about the first item on the second page. 
MR GUPTA:  And can I just make one observation on the third page, ‘Photocopying of application bundle.’  I have, I have the… in the two bundles are photocopies of the CPR rules plus the Indian banking rules and they just cost… if they’ve provided the originals it would have cost less than £10, but they’ve charged £166. 
JUDGE DONALDSON:  No, no, it is photocopying of all the stuff that they have got to photocopy to get into my bundle and all the rest of it. 
MR GUPTA:  And on the question of postage and delivery I actually delivered documents to them and went to their offices to receive documents which should have been delivered to me. 
JUDGE DONALDSON:  Yes.  Well- 
MR GUPTA:  I don’t want to give the impression that I’m sort of- 
JUDGE DONALDSON:  No, I have told you, you should have no qualms on that ground and any criticisms which you make of this, do not be embarrassed to do so. 
MR GUPTA:  I’m just deeply, deeply- 
JUDGE DONALDSON:  Well, it does, I mean all I can say to you is that £5,300 is a very low sum for the solicitors, apparently just because they agreed a fixed fee and I am told, I have not done the maths but it looks probably about right that it would if you just applied the hourly rates to these things come out at something like £16,000.  So even if I took out, as I think I would be tempted to do, a fair chunk of the first item which is about 16 hours of attendance on the claimants and brought that down by 13 hours that would remove £200, 200 by 13 is what?  
MR RATHMELL:  £2,600. 
JUDGE DONALDSON:  Well quite, it just would not bring it down to anywhere like the fixed fee of £5,300 so- 
MR RATHMELL:  Addressing that point, My Lord, on that point I mean this genuinely with the utmost respect to Mr Gupta, he is quite a lot of work in the terms that his letters are very eloquent and detailed.  They do require quite a lot of- 
JUDGE DONALDSON:  Well perhaps, but it is irrelevant.  I think I would have been inclined to bring it down, but it is completely irrelevant because this is not done on a [inaudible].  It gives me an indication of the amount of time that has been spent and I can see that there is a very considerable amount of time.  If it was 45 it would be £9,000-odd. 
MR RATHMELL:  Yes.  
JUDGE DONALDSON:  Oh well, however way I cut it or slice it I cannot get it down below the £5,300 for the solicitors so I am going to order that.  So far as the rest is concerned I think it is very heavy and I think that there has been a lot of work by counsel and I cannot fault that so, primarily because there was this fixed fee which is way below what I would have been normally ordering just based on the time, I am going to assess the costs as they are stated here.  Has this got VAT on it or not? 
MR RATHMELL:  Is this going to be? 
JUDGE DONALDSON:  Has this got VAT or not? 
MR RATHMELL:  I don’t know.  No.  
JUDGE DONALDSON:  Is that because there isn’t any VAT because the bank is applying foreign- 
MR RATHMELL:  It’s because the bank is paying from India, yes. 
JUDGE DONALDSON:  Okay.  So there is no VAT to be added to this?  So there will be an order for £29,442.66.  Is there anything else? 
MR RATHMELL:  In terms of timing for the payment of costs, I’d ask for 14 days. 
JUDGE DONALDSON:  Well that is what would happen normally. 
MR RATHMELL:  Indeed.  I was just giving Mr Gupta the opportunity- 
JUDGE DONALDSON:  Right, okay.  The normal – yes, you are giving him a steer, quite properly.  The normal timing which is set out in the rules would be it should be paid within 14 days. What do you have to tell me about that? 
MR GUPTA:  I just don’t have that money.  I just don’t have that money and they’ve got all our assets and they’ve got everything, they’re just… I’m just- 
JUDGE DONALDSON:  Mr Rathwell, I think we have got to be realistic about this, do we not? 
MR GUPTA:  I just don’t have it. 
JUDGE DONALDSON:  It looks as if you are going to be faced by an application at some stage for a stay of execution and no doubt the Master will want to know what his proposal for payment… I mean I cannot deal with that now- 
MR RATHMELL:  No. 
JUDGE DONALDSON:  -and we are now… what is the date today, 20th? 
MR RATHMELL:  The 21st. 
JUDGE DONALDSON:  I am inclined to extend the time for three weeks. What that will mean, Mr Gupta, is that after three weeks the money will actually become due and payable.  If you are going to say that you cannot pay it for some reason the normal course but I am not giving you advice on this but you can apply to and make the application on the Master for a stay of execution.  I suspect that the Master will want to know well what are your proposals for payment, over what period of time?  So I would anticipate that you would want to support your application with material in the form of affidavit and any other supporting matters which explains what your proposals would be for meeting this, and the Master will then consider them and decide whether and on what terms to grant a stay of execution.   So I am going to extend the time to three weeks so the costs have to be paid within three weeks and that is to give you a possibility of making an application in advance of that- 
MR GUPTA:  I just feel- 
JUDGE DONALDSON:  -to see to that.  Or before doing that you might want to discuss with the bank, because the bank may say that it is prepared to accept payment by instalments or whatever. 
MR GUPTA:  They’ve got all our money, they’ve got everything- 
JUDGE DONALDSON:  Well the… it is possible that you may wish to make that point to the Master and the bank may take that into account, it may take the view that once you get a grant of probate and you are likely to, you are going to get a lot of money and in those circumstances it may decide it does not want to enforce this costs order.  I can see that that might be a commercially and humanly sensible approach.  So what I would do is I would get in touch with the bank and discuss that because- 
MR GUPTA:  Would you like- 
JUDGE DONALDSON:  -it would seem to me, Mr Rathwell, that that is a rather obvious point which would be made to the Master that given that there is pots and pots of money out there and on the face of it some of it is supposed to be coming into the family and- 
MR GUPTA:  How does- 
JUDGE DONALDSON:  -it might be inappropriate not to grant a stay of execution for that reason alone. 
MR RATHMELL:  Indeed.  I shall certainly be giving my own clients some robust advice. 
JUDGE DONALDSON:  Well, could you do that because one could see that quite an attractive argument could be made- 
MR RATHMELL:  Certainly, My Lord. 
JUDGE DONALDSON:  -along the lines that I have been suggesting, and that if the matter came before the Master it would be incumbent on you to draw his attention to- 
MR GUPTA:  Can I just give- 
JUDGE DONALDSON:  -what the expectations are of money in the future. 
MR RATHMELL:  Certainly, My Lord. 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  Can I just make one… I appreciate this has gone past 4.30. 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  Can I just also draw Your Lordship’s attention to the… perhaps, I don’t know how to say it but a great deal of money that the bank’s holding- 
JUDGE DONALDSON:  Mm-hmm. 
MR GUPTA:  -has been misappropriated. 
JUDGE DONALDSON:  No, I am not going to listen to that.  We have dealt with the applications, we have dealt with all the ancillary matters.  If the bank decides it wants to enforce this costs order and I am not convinced it will decide that, it may well decide that it is not going to do so, or it is certainly not going to do so in the first instance but if it does decide to do it you can raise all these questions before the Master as to why it could be unfair to enforce a costs order for £30,000 in all the circumstances. 
MR GUPTA:  Yes, but- 
JUDGE DONALDSON:  I think the bank has got these matters firmly on-board.  Mr Rathwell is going to explain the matters in detail to his clients and it may be, in the light of what we have just been saying, that they will not take the question of costs further. 
MR GUPTA:  Just one final point and that is- 
JUDGE DONALDSON:  I think in the circumstances I might say four weeks. 
MR RATHMELL:  Certainly.  
JUDGE DONALDSON:  So I am not going to say three weeks, I am going to say four weeks.  I am going to extend the normal time for which the costs must be paid from two weeks to four weeks. 
MR GUPTA:  One final point. 
JUDGE DONALDSON:  Yes? 
MR GUPTA:  Is the stay which has been granted- 
JUDGE DONALDSON:  Yes. 
MR GUPTA:  -is, in for example, I’m not clear in my mind where we would go as a result of the stay.  If there’s problems in India in relation- 
JUDGE DONALDSON:  All I am saying is because it is a stay and I have not, though tempted to do so, actually struck out the proceedings and there has been no application to that, because it is a stay the proceedings continue theoretically in existence but in a limbo state, alright?  That is to say in theory they exist but nothing is going to happen to them but wherever you have got that kind of situation it is always open to the parties or a party to come back and say, ‘Look, everything’s changed dramatically. The position compared with what it was when the stay was ordered is so different in a respect that was critical or important to the grant of the stay that I want the court to review it because I say in relation to’- 
MR GUPTA:  Does that mean- 
JUDGE DONALDSON:  The position in the Indian courts I cannot stop you returning to the court but- 
MR GUPTA:  No, I appreciate that. 
JUDGE DONALDSON:  -I am not encouraging you to do so. 
MR GUPTA:  No, no, I follow that completely, but what I need clarity on is that if for example there is violence or- 
JUDGE DONALDSON:  I am not going to give you advice on the circumstances.  I am merely making the point that the stay in theory is capable of being amended if there is a relevant change in circumstances and I am not going to give you any further comment than that.  
	Right, now, the bundles can go back to whoever wants to lay claim to them.  
MR RATHMELL:  We can- 
JUDGE DONALDSON:  Fine.  The associate is desperate to ensure that you produce minutes of the order. 
MR RATHMELL:  The minutes of order, certainly.  Can I email them? 
JUDGE DONALDSON:  Yes, you could.  Well, they can come across to me in whatever form… if you send in a hard copy I will initial it. 
MR RATHMELL:  Certainly.  We will… are you sitting tomorrow, My Lord? 
JUDGE DONALDSON:  I am sitting tomorrow so if you get them on to my desk at some point tomorrow I can initial it, yes. 
MR RATHMELL:  I will aim to do that tomorrow.  I’m grateful. 
JUDGE DONALDSON:  Right, well once more my thanks to both of you for helping me through a fairly complex matter and a complex set of papers, and that goes to both of you, Mr Gupta.
End of judgment
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