Nassif v Fahd

The appeal concerned the costs orders made by the District Court and the Court of Appeal in proceedings between Nassif and Fahd. The appellants had succeeded on a particular point in the Court of Appeal, which had not been raised in the District Court.

The central legal issue before the Court of Appeal was whether to depart from the usual rule that costs follow the event, given that the successful point had not been taken in the lower court. The court was required to consider the discretionary factors relevant to awarding costs, including the strength of the successful argument and the likelihood of the District Court trial having proceeded differently had the point been raised earlier.

The Court of Appeal reasoned that the point on which the appellants succeeded was overwhelmingly strong and based on clear High Court authority. However, it was also acknowledged that a 7-day trial in the District Court was unlikely to have taken place if this point had been relied upon at that stage. Applying its discretion, the court determined that it was appropriate for each party to bear their own costs in both the District Court and the Court of Appeal.

Consequently, the Court of Appeal made no order as to costs in the District Court, leaving each party to bear their own costs. Similarly, no order was made as to the costs of the appeal, with each party again left to bear their own costs.