First Appeal
5 The First Appeal (as so described in the principal judgment), was brought by the bankrupt, his mother (Mrs El-Debel) and a person described at various points in the evidence as the bankrupt's wife (Ms Ayad). Although brought as a single appeal dependent upon a course of events common to all three parties, the claims concerned two separate properties; one the subject of a claim of ownership by Ms Ayad and the other the subject of a claim of ownership by Mrs El-Debel.
6 It is common ground that the part of the appeal that concerned Ms Ayad was not successful.
7 As to the part of the appeal that concerned Mrs El-Debel it was successful to the extent of a 20% interest in the property. For Mrs El-Debel it is submitted that she should not be made liable for costs for two reasons. First, the partial success. Second, the response by the Trustees to an offer of settlement dated 28 April 2021 (about one month before the hearing of the appeal). The offer was rejected preemptorally. It was not submitted that the offer was on a par or more favourable to the Trustees than the outcome in the appeal with the result that the rejection of the offer was thereby disentitling conduct for the purposes of the exercise of the discretion as to costs. Rather, the submission made was that the Court should infer that the appellants had made a genuine attempt to resolve the proceedings amicably which was not reciprocated.
8 There is a further procedural respect in which the First Appeal was successful. It did not result in any practical success. Quite properly that aspect was not relied upon by the appellants in the First Appeal to support their submissions as to costs.
9 The rejection of the offer has been vindicated by the outcome in the appeal. It is to be hoped that the terms in which the rejection of the communication of the offer was expressed are regretted by the lawyer involved. It was expressed in terms which are not countenanced. However, it is not a matter that should have a disentitling effect. The submission advanced was, in effect, a submission that there should be a form of punishment to the Trustees by reason of the manner in which the response to the offer was formulated. As has been indicated, the Court does not exercise its discretion as to costs to achieve such a purpose.
10 Therefore, in the case of Ms Ayad the appeal was unsuccessful and in the case of Mrs El-Debel the appeal was only successful to a limited extent. Many grounds of appeal were ultimately not pressed on appeal but had to be addressed by the Trustees in preparation and in filing written submissions. It was submitted that the Court's reasons rejected parts of Mrs El-Debel's appeal that were not advanced. Those parts were not identified. In circumstances where various grounds were abandoned in the course of oral argument such a contention is not a factor that should affect the exercise of discretion.
11 Overall, we would characterise Mrs El-Debel as having had modest success, but that in practical terms, given the extent of the issues raised and the extent of the claimed interest the subject of the appeal, it is the Trustees that were, for practical purposes, the successful party viewing the claims made by Mrs El-Debel as a whole.
12 Taking into account the overall success by the Trustees and the limited success of Mrs El-Debel and the manner in which the First Appeal was conducted, the appropriate order is for the appellants in the First Appeal to pay the Trustees' costs of the appeal jointly and severally, save that the liability of Mrs El-Debel shall be limited to 80% of those costs. The costs should be assessed if not agreed.