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England and Wales High Court (Technology and Construction Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Click Above Corben Mews Ltd & Anor v 381 Southwark Park Road RTM Company Ltd & Ors (Re Costs) [2025] EWHC 1581 (TCC) (26 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2025/1581.html
Cite as: [2025] EWHC 1581 (TCC)

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Neutral Citation Number: [2025] EWHC 1581 (TCC)
Case No: HT-2022-000254

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)

Rolls Building
Fetter Lane
London, EC4A 1NL
26th June 2025

B e f o r e :

MRS JUSTICE JEFFORD
____________________

Between:
(1) CLICK ABOVE CORBEN MEWS LIMITED (COMPANY REGISTRATION NO. 11102451) (ACTING BY ITS FIXED CHARGE RECEIVERS VICTORIA LIDDELL, ALEXANDRA WARD AND TAMMY WILKINS)
(2) VICTORIA CAPITAL TRUST
Applicants
- and -

(1) 381 SOUTHWARK PARK ROAD RTM COMPANY LIMITED
(2) SOPHIA ELIZABETH SMITH
(3) ARMAND JUNIOR FRANCOIS SABLON
(4) PIZARRAS Y BALDOSAS SA
(5) LAURA JANE MACKIE
(6) CHARLES WILLIAM GEORGE FRY and EDWARD CHRISTOPHER MURRAY FRY
(7) GLORIA NOK TUNG CHAN
(8) PROPERTIES (RESIDENTIAL 2) LIMITED
(9) SALIM LALANI and ROZMIN LALANI
(10) KAMALA NADIR KYZY BUCHHOLZ
(11) LUKE EDWARD PRICE
Respondents

____________________

Francis Moraes (instructed TWM Solicitors LLP) for the Applicants
Adam Benedict (instructed by Adam Benedict Ltd.) for the Respondents

____________________

HTML VERSION OF JUDGMENT ON COSTS
____________________

Crown Copyright ©


     
    This judgment was handed down remotely at 10.30am on Thursday 26th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    Mrs Justice Jefford:

  1. On 23 January 2025, I handed down judgment in this matter in relation to an issue which had arisen from the freezing injunction made on 15 August 2022 and which remained and remains in place. Following correspondence with the court, the parties agreed the terms of an Order which varied the injunction to make clear that it did not prohibit the dealing with and disposal of the Properties (as defined in the Order) by the Receivers and which provided for any issues as to costs to be the subject of written submissions. Written submissions were subsequently made.
  2. The detailed submissions of the parties can be briefly summarised. The applicants' position is simple and is that they were the successful party on the application: (i) the applicants' case was that the freezing injunction did not prohibit their dealing with the Properties; (ii) the judgment of the court was in favour of that position; (iii) the variation of the Order simply clarifies that position. Costs should follow the event and the respondents' should pay the applicants' costs. It is further the applicants' submission that those costs should be assessed on the indemnity basis.
  3. The respondents say now that the application was entirely avoidable and a waste of court time. That submission is founded on the decision in Taylor v Van Dutch Marine Holdings Ltd [2017] EWHC 636 (Ch) which is cited as authority for the proposition that a creditor with security over an asset which is the subject of a freezing order can enforce the security without having to make an application to the court to discharge or vary the freezing order. It is recognised that that case was not cited to the court at all but the respondents submit that the applicants ought to have been aware of the position in law and that the making of the application was unnecessary.
  4. In any event, the respondents' position is that was not their case that the injunction prohibited the applicants dealing with the Properties. Rather they were in a position of not knowing whether Click St Andrews might have a beneficial interest in the Properties. That was through no fault of their own and was to a large extent the consequence of the failure of Click St Andrews to comply with orders of the Court to provide information. The respondents, therefore, said that they were not able to confirm that the applicants could deal with the Properties and they did not consider that they could consent in light of the court's order. It was, they said, for the applicants to judge whether to take the risk that their actions would amount to a breach of the injunction. The respondents made a reasonable proposal to ring fence part of the proceeds of sale, rather than prevent the sale. Taking account of all aspects of the parties conduct there should be no order as to costs or, put another way, that each party should bear its own costs.
  5. Conduct of the parties

  6. It is, of course, the case that the court may and should take into consideration the conduct of the parties including pre-action conduct and any relevant offers. The relevant correspondence is largely summarised at paragraphs 64 to 66 of the judgment. The positions that I have summarised and that correspondence show that this was a case in which the parties were faced with a conundrum some of which was of their own making.
  7. On the one hand the applicants clearly contended that the Properties did not fall within the scope of the injunction and/or that their Charge took priority over any interest that Click St Andrews might have. They could, therefore, have dealt with the Properties without any further order of the court. As I indicated at paragraph 72 of the judgment, the respondents flagged the risk that disposing of the Properties would be a breach of the injunction but, if that had caused the Receivers not to dispose of the Properties, that was their decision.
  8. It seems to me that the respondents' reliance on the decision in Taylor v Van Dutch Marine Holdings Ltd. and the applicants' response are something of red herrings. The Van Dutch case is concerned with the position where a secured lender enforces his security against an asset the subject of the freezing order. Mann J set out, as a matter of principle, that the purpose of a freezing order is to prevent the defendant against whom it is made from improperly dissipating its assets; its purpose is not to provide security to a creditor; and it does not bar anyone else with rights over the assets from disposing of them. In the present case, the Charge was against the property of Mews Ltd. not Click St Andrews. It only had anything to do with Click St Andrews if that company had any interest in that property. That leads straight back to the issue as to whether there was or might be any such interest and whether the Charge took priority. The respondents have never accepted either that there was no such interest or that the Charge took priority so that the applicants remained, the respondents said, at risk of breaching the injunction. If the applicants were right, as I held they were, the application to vary the freezing injunction was strictly unnecessary (as it was in the Van Dutch case) but the position adopted by the respondents gave rise to legitimate cause for concern.
  9. The respondents continued, at the very least, to raise the possibility that Click St Andrews had a beneficial interest in the Properties over which the Charge did not take priority – see the evidence referred to at paragraphs 24 and 25 of the judgment on this application. Indeed, once the application had been made, the Respondents advanced a positive case to that effect as summarised in paragraph 27 of the judgment. As I said at paragraph 30, in light of the respondents' assertions, the applicants cannot be criticised for wishing to have the comfort of a decision of the Court. It was, however, still a comfort rather than a necessity and the applicants could have proceeded with the sale without further order.
  10. The applicants made offers at an early stage, on both 5 February 2024 and 22 February 2024, to the effect that, if the respondents agreed to allow the disposal of the Properties, there would be no order as to costs. That offer was not accepted and the end result has been that the costs of this application have been incurred. But that has to be seen against the background that the applicants could have disposed of the Properties without further order and in those circumstances the offer is of little weight.
  11. The respondents were in the position of lacking information and certainty as to Click St Andrews' proprietary interests. Some criticism is made of the respondents for failure to take further steps to obtain more information about Click St Andrews' assets or to ascertain its proprietary interests. That criticism is unfair. The respondents are all, in effect, individuals (albeit some in corporate guise) whose properties were severely damaged and who have been for some years pursuing claims against Click St Andrews and its holding company. At the time the issues in this application arose, the trial was imminent and was rightly the respondents' focus. The court indicated that any issues as to the interests that fell within the freezing injunction would not be dealt with until after the conclusion of the trial. The trial had concluded by the time of the hearing of this application but judgment had not been handed down and was not, I regret, handed down for some time. The respondents cannot sensibly have been expected to spend more time and cost on Click St Andrews' position at this stage.
  12. For completeness, I would add that there is a suggestion in the respondents' submissions that they could have expected both the judgment to have been handed down and the freezing injunction to have been dealt with at a consequential hearing before this application was even issued and that the respondents would then have been able to provide clarity to the applicants as to how the court proposed to deal with the freezing injunction. That submission does not make sense as the respondents were not, and still are not, in a position to make any application to the court that would result in findings that Click St Andrews has a beneficial interest in the property of other companies in the group. Click St Andrews' assets are, in any event, principally a matter for its liquidators and any further applications would have to take account of their role. At the risk of repetition, the respondents' position is to a large extent the product of the failure of Click St Andrews to comply with the disclosure obligations in the freezing injunction but that would not have the result that the court would make findings (one way or the other) about Click St Andrews' assets without more.
  13. The respondents submit that the issue of priority was not sufficiently particularised until the skeleton argument for the hearing and that had that case been properly articulated the respondents' may have reacted differently. The submission that the case was not adequately particularised is plainly not right. Priority of the Charge was a key aspect, albeit not the sole aspect, of the applicants' arguments throughout and it was more than adequately explained. The respondents rely on paragraph 50 of the judgment in which I refer to a shift in the parties' positions but that referred only to the difference in references to the charge being over "the flats" and the proprietary interests and, as I said, was indicative of the fact that the position had to be considered by reference to the secured proprietary interests.
  14. Mr Moraes, on the contrary, submits that the conduct of the respondents in relation to the priority issue was "unresponsive, unreasonable, lacked any application of commercial common sense and in certain instances was nonsensical …". I do not accept that submission either. It is right that the respondents did not agree that the key issue was priority and nor did they advance arguments on this issue in correspondence but that does not amount to unreasonable conduct. It simply reflected that there was a dispute which could not be resolved without recourse to the court unless there was some other solution.
  15. As I recited at paragraph 33 of the judgment, the respondents did not seek to stand in the way of the sale of the properties but thought, wrongly in my view, that they could not consent to a variation of the injunction. I do not accept the submission made in respect of costs that the respondents thus "blocked" the sale.
  16. The respondents sought to make a practical suggestion to resolve the issue without the need for further litigation. That was the proposal to "ringfence" an amount (£52,680) from the proceeds of sale. It is unfortunate that that proposal was based on a misconception as to the extent of funds transferred from Click St Andrews to Click Above. However, the proposal showed a clear desire by the respondents to resolve this matter without recourse to litigation and in a manner which ensured that the valued of any beneficial interest of Click St Andrews over which the Charge did not have priority would be "protected". The respondents submit that it would have been reasonable for the applicants to accept this offer – or perhaps this offer in a lesser amount – and avoid the need for the application.
  17. The applicants' response to that is that any delay has a cost to it. That does not seem to me to be a complete answer to the respondents' point as agreement to the proposal would have enabled the sale to proceed and only "delayed" the availability of a portion of the proceeds of sale. But I do not consider that it was unreasonable for the applicants to reject that offer. As I have said, it was based on a misconceived figure and, as Mr Moraes submits, it would have simply deferred the time at which any issue of beneficial interest (with the attendant costs of investigation) and priority would be determined.
  18. Mr Moraes submits that, for those reasons, the offer should not be taken into account at all. I agree that it is not an offer that can be taken into account by analogy to a Calderbank offer or as one that flips the incidence of costs. But it does seem to me appropriate to have regard to it as indicative of the respondents' desire to reach an amicable solution and not to be unreasonable.
  19. In my view, neither party acted unreasonably but the applicants made an application which, on their own case, was not strictly necessary and the respondents promoted the concerns which led to the making of the application at first seeking a reasonable compromise but, when the matter progressed to a hearing, opposing the application in full.
  20. Success

  21. There is no question that the applicants were the successful party in the sense that they obtained the relief sought in the application. However, the court may also take into account whether it was reasonable for a party to raise, pursue or contest an issue.
  22. Mr Moraes submits that the respondents have had no success that detracts from the applicants' success. He points to the following:
  23. i) The respondents sought the dismissal or stay of the application which they failed to obtain. That is, with respect, no more than saying that the applicants were successful.
    ii) The court found the claim for a beneficial interest was "inherently improbable". That again is no more than saying that the applicants were successful. In light of the argument on priority, the issue of a beneficial interest did not need to be determined. In any case, it was the product of the difficulties faced by the respondents because of non-compliance with the court's orders in respect of disclosure.
    iii) The court found that the submission that the freezing injunction was unnecessary following the liquidation of Click St Andrews had considerable force. That is so but the relevant passage in the judgment is followed by the observation that the discharge of the injunction was a matter for the liquidators and that no such application had been made since the liquidation.
    iv) The court considered it open to it to require an undertaking as to damages if the variation had not been made. That slightly overstates the position in that the application being made was for a retrospective undertaking as well as a prospective one and it was only a prospective undertaking which I would have considered granting.
  24. The applicants were themselves unsuccessful in a number of their arguments which are addressed in the judgment under the heading "The alternative cases". In short, I would not have granted the declaration sought; I found against the applicants on the argument that the injunction should be discharged in its entirety for either of the reasons advanced; and I would not have required a retrospective undertaking as to damages. At paragraph 75, I described the parties' cases on these issues as far ranging. It is entirely fair to say that the key issue became that of priority but substantial time and cost was expended before and at the hearing on the these far ranging cases.
  25. The respondents submit that the issues on which the applicants failed took up at least half of the submissions both before and at the hearing. In my view that is somewhat exaggerated but there is no doubt that these issues were fully and extensively argued.
  26. Post hearing

  27. Following the hearing, on 21 August 2024, the respondents offered to consent to an order that the freezing injunction would not attach to the Properties and that there would be no order as to costs. That offer was made after all the costs of the hearing had been incurred; it was unsurprisingly rejected; and it is of no relevance to the exercise of my discretion on costs of the application generally.
  28. Order as to costs in principle

  29. The order as to costs is a discretionary matter taking into account the matters set out in Part 44. In this case, I have no doubt that the applicants, as the successful party, should have some part of their costs. I do not consider it appropriate to make an issue based costs order although that would have been an available option to reflect the measure of success on issues. Rather, taking account of what I have called the conundrum, the parties' respective conduct, and the measure of success on issues, it seems to me that the fair order is one that the respondents should pay 50% of the applicants' costs.
  30. Basis of assessment

  31. The applicants have submitted that they were forced to make this application by the conduct of the respondents which was out of the norm and that costs should, therefore be assessed on the indemnity basis. I do not accept that submission. There were a number of unusual aspects to this application and the circumstances in which it was made and nothing so unreasonable in the respondents' conduct that it was taken out of the norm of assessment on the standard basis.
  32. In response to the applicants' submission, the respondents relied on a number of authorities relating to the order of assessment on the indemnity basis. I do not recite them all but most relevant is Arcadia Group Brands Ltd. v Visa Inc [2015] EWCA Civ 883. Weakness of a legal argument is not, without more, a justification for an indemnity costs order. The position might be different if the proceedings or steps taken within them were plainly hopeless or had some ulterior motive. Contrary to the applicants' submission, in my judgment, there is nothing like that in this case.
  33. Summary assessment

  34. There are before me two versions of the applicants' statement of costs for summary assessment: one provided in advance of the hearing in July 2024 ("the July version") and one following judgment in January 2025 ("the January version"). The current application is made for the sums claimed in the version filed in January 2025 which, I am told, takes account of costs mistakenly omitted from the previous version, costs to date and costs of the costs application. The total sum claimed is £42,338 plus VAT of £8,467.00. The respondents object to reliance on the January version and ask the court to cap the costs at the total in the July version.
  35. A statement of costs for the purposes of summary assessment is required to be filed prior to the hearing signed by the party's legal representative. In this case, the time estimate given by the applicants was half a day but the hearing lasted the entire day. Had the hearing lasted half a day and been of the scope that might have been expected for a half day hearing, the parties could have anticipated an ex tempore judgment followed by an order as to costs and a summary assessment. It is wholly unsatisfactory to say after the event, as the applicants do, that costs were left out and that they would have been the subject of oral submissions (of which no notice had been given) and for the applicants now to take advantage of the fact that the longer and more extensive hearing necessitated a reserved judgment. It is right, however, that I now have a further statement of costs signed by legal representatives and which undoubtedly includes costs incurred after the hearing. Rather than capping the costs in the lesser amount, I intend to reflect the unsatisfactory position by discounting the amounts that appear to have been left out.
  36. There are a number of striking differences between the July and January versions:
  37. i) The total claimed in July was £24,058 (plus VAT). The increase in costs is therefore over £18,000 or about 75%.
    ii) There are additional attendances on opponents amounting to over £3,500.
    iii) Counsel's fees, other than for the hearing, have increased from £2,750 to £8,000. A further sum of over £5,000 is claimed for preparing the costs submissions.
  38. Between the conclusion of the hearing and the costs submissions, there had been some exchanges between the parties in relation to further documents which the respondents sought to put before the court (as set out in paragraphs 13 and 14 of the judgment). TWM's position was that it objected to the admission of these documents in evidence. The correspondence was brief but I recognise that TWM would have had to review the documents. I do not consider that that could account for a further £3,500 in attendances on opponents and it is not reflected in the Schedule of work done on documents. It does not naturally fall within the line "Preparing research post hearing" which has been added since July and that research is otherwise unexplained.
  39. Whilst I do not wish to do Mr Moraes and his able submissions any disservice, I do not see how over £5,000 of fees could have been mistakenly omitted from the July statement of costs. It is submitted that these omitted fees were for settling the letter before the application, the application and the evidence in support. The Schedule of work done on documents also includes work to prepare the application (charged at Grade A rates), to prepare the witness statements of Mr Hitchcock and to prepare the exhibits. The sums are relatively modest and indicative of counsel's involvement but not to the extent of the difference between the two versions of the statement of costs. There would also have been additional time spent providing typographical corrections to the judgment and agreeing the form of Order but that could not account for any significant part of this difference.
  40. Further, although counsel was required to make submissions on costs and reply submissions, the costs incurred for the costs submissions seem to me high. It is submitted, in particular, that given the lapse of time between hearing and judgment, preparation required re-reading of documents. I recognise that there will have been some need for re-familiarisation but that has to be seen against the following background. Firstly, submissions on costs had already been made as part of the skeleton argument for the hearing. The applicants made their case for indemnity costs and, in particular, set out their case as to why the "ring fencing" offer could not be relied upon. The subsequent submissions adopted and expanded upon those submissions. Secondly, the expanded submissions and further submissions largely relied on the terms of the judgment. That had been provided in draft in December and reviewed for the purposes of providing corrections before any submissions on costs were made in writing.
  41. The respondents also point out that the applicants' solicitors are based on Guildford and that the national rates should apply, being at the time £278 per hour for a Grade A fee earner and £175 per hour for Grade D. The rates claimed are, therefore, about 25% higher than the national rates.
  42. Taking account of the reductions to the elements of the statement of costs that I have indicated above (but not the hourly rates), I would have summarily assessed the costs in the sum of £34,100. 50% of that sum payable as costs by the applicants would, therefore, be £17,050.
  43. Since this is a summary assessment, rather than carrying out a detailed assessment of the solicitors' costs and recalculating all the solicitors' fees on national rates, and also taking account of the fact that part of the costs are counsel's fees, I make a further reduction of 15% rounded up give a total payable (excluding VAT) of £14,500.
  44. The statement of costs includes a claim for VAT. I am surprised to see a claim for VAT as I would expect either of the applicant companies to be VAT registered. If they are not, VAT is recoverable. If they are, it is not. I would hope that the parties could agree whether or not VAT was payable but, if not, further submissions can be made in writing.
  45. Subject to the addition of VAT, therefore, my decision is that the respondents should pay the applicants' costs in the sum of £14,500 and, bearing in mind that the respondents are all effectively individuals, I will give 56 days from the date of the handdown of this judgment to pay.
  46. The further offers

  47. When Mr Moraes made his written submissions on 27 January 2025, he did so, in accordance with my directions, by email to my clerk. In that email he also said that he would send under separate cover the applicants' costs submissions in respect of without prejudice save as to costs dealings in respect of the costs of the written submissions. In that further email, Mr Moraes said that the applicants had made a without prejudice save as to costs offer which was relevant to the liability for the written submissions on costs.
  48. Before I first considered the costs submissions in February, I confirmed to Mr Moraes that I had not opened that second email and I asked him to clarify whether I would reach a decision on costs and then consider the second email so that there would be a single ruling or whether, following my decision on costs, I should expect further submissions (if relevant) on the offer. My concern was not to consider the without prejudice save as to costs correspondence before I should properly do so. It was confirmed that the former approach would be preferable. Accordingly, at this point, I have now reviewed that correspondence.
  49. The correspondence amounts to a single email from TWM to the respondents' solicitors. The date is not apparent on the face of the attachment but is said to be 17 January 2025. The email reiterates that it is the applicants' case that the respondents should pay their costs on the indemnity basis but is an offer to compromise on the basis that the respondents pay the applicants' costs on the standard basis. It is submitted that the offer is self-explanatory and that if the applicants achieve this result as a minimum, the costs of the costs submissions (which had not been made at the date of the offer) should be paid on the indemnity basis.
  50. In light of the decision I have reached on costs, the applicants have not achieved that minimum as they are not to recover the whole of their costs on the standard basis. It follows that no further adjustment needs to be made to the amount awarded as costs.
  51. The respondents' alternative submission

  52. The respondents propose that there is an alternative means by which the court should deal with costs namely by the making of an order under Part 46.2(1) that a third party bears the costs. It is argued that such an order could and should be made against any one of Click Group Holdings Ltd, Click St Andrews and Aaron Emmett on the grounds that they were responsible for the provision of information in accordance with the freezing order and were in breach of those provisions. In relation to Mr Emmett it is further proposed that the court should order Mr Emmett to provide costs submissions and explain why the various orders have not been complied with.
  53. Part 46.2(1) requires that a person against whom a third party costs order is sought should be joined as a party to the proceedings and given the opportunity to be heard. There is no application under this rule before the court (other than a paragraph of the respondents' submissions) but the making of such an order is a matter for the court's discretion and I accept that the court could join a party of its own motion. I do not, however, consider it appropriate to do so.
  54. The short point is that the applicants' success did not turn on whether or not Click St Andrews had any interest in the Properties but on the priority of the Charge. It was not necessary for the court to determine whether there was such an interest and I expressly did not do so despite the invitation from the applicants, in the absence of any further evidence, to make a finding that there was no such interest. As I said in the main judgment and in this judgment on costs, the respondents are not, in my view, to be criticised for maintaining that there may be such an interest in the face of the disclosure failures but that was not the determinative point on the merits of the application and is not a basis for a costs order against a third party and it certainly does not follow that any third party ought to bear the costs of the application.

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