England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 96/1149/E

Royal Courts of Justice

Strand

London WC2

Tuesday, 8th July 1997

B e f o r e :

LORD JUSTICE PHILLIPS

LORD JUSTICE WALLER

and

LORD JUSTICE MUMMERY

---------------

(1) TGA CHAPMAN LIMITED

(2) BENSON TURNER LIMITED

Plaintiffs/Respondents

-v-

(1) PAUL GEORGE CHRISTOPHER First Defendant

(2) SUN ALLIANCE AND LONDON INSURANCE PLC

Second Defendant/Appellant

---------------

Handed Down Judgment prepared by

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 831 3183 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

---------------

MR W CROWTHER QC and MR G EKLUND (instructed by Messrs Wansbroughs Willey Hargrave, London WC2) appeared on behalf of the Appellant Second Defendant.

MR P SHEPHERD (instructed by Messrs Clyde & Co., London EC3) appeared on behalf of the Respondent Plaintiffs.

---------------

J U D G M E N T

(As Approved by the Court)

Crown Copyright

Tuesday, 8th July 1997

LORD JUSTICE PHILLIPS:

In this action the Plaintiffs successfully sued the Defendant, Mr Christopher, for damages for negligently causing a fire which damaged their property. They recovered judgment for £1,129,212 and were awarded their costs. The Defendant had no assets, but enjoyed insurance cover against his liability, subject to a limit of £1 million, under a policy subscribed by Sun Alliance and London Insurance PLC ("the Insurers"). The Insurers had conducted Mr Christopher's defence. After judgment had been entered against Mr Christopher, the Insurers agreed to pay the Plaintiffs £1 million in full settlement of Mr Christopher's liability, but without prejudice to the Plaintiffs' right to seek an Order under section 51 of the Supreme Court Act 1981 that underwriters pay their costs of the action. In due course they sought such an order and on the 23rd May 1996 His Honour Judge Zucker Q.C., sitting as a Judge of the High Court, granted their application, explaining the basis on which he did so in a carefully reasoned judgment. The Insurers now appeal against his Order.

On the 20th November 1996 this Court handed down judgments in two appeals which had been tried together. Each involved applications for costs orders under Section 51 of the Supreme Court Act. In the first action, Murphy v. Young & Co's Brewery (The Times, 8th January 1997), an order for costs was sought against Sun Alliance, who had funded the Plaintiffs' costs of the action pursuant to obligations under a policy of insurance against legal expenses. The trial Judge had refused to order costs against Sun Alliance, and this Court upheld his decision. In the course of argument, the Court was referred to Judge Zucker's judgment in the present case. In the course of giving the leading judgment, I referred to the reasons given by Judge Zucker for his decision and commented:

"Having regard to these reasons it may be hard to fault the manner in which Judge Zucker exercised his discretion..."

That comment was made without hearing argument on the merits of Judge Zucker's decision. I have now heard such argument and must review his decision in the light of it.

I cannot improve upon Judge Zucker's summary of the material facts which were as follows:

On 28th November 1991 a warehouse and factory premises at Wyke Mills, Huddersfield Road, Bradford, West Yorkshire, and its contents, were extensively damaged in a fire. The fire was caused by the negligence of the defendant, Paul George Christopher, who threw a lighted match which landed in an open tin of beeswax which immediately caught fire. Chapmans leased Wyke Mills from Benson Turner. Chapmans design, manufacture and supply display fittings, furniture and shopfittings. Their machinery and stock was damaged to a value of £986.696. Benson Turner had to repair the building and lost rent. The loss to them was £142,516. The Plaintiffs total joint claim was for £1,129,212.

Mr. Christopher lived at home with his mother. He had no assets. His mother had a building contents and liability policy effected through the Halifax Building Society. The liability provision covered not only Mr. Christopher's mother but Mr. Christopher as well.

By action commenced by writ issued on 21st April 1993, Chapmans and Benson Turner sought to recover the losses they had incurred from Mr. Christopher.

There were terms of the policy as follows. Under section 2, "Home Contents" paragraph 17:

"The insured is indemnified against liability at law:

For damages and/or claimants' costs in respect of accidental bodily injury (including death, disease or illness) or accidental damage to material property occurring during any period of insurance incurred....

(b) solely in a personal capacity (not as occupier or owner of any buildings or land).

The limit of indemnity for all damages and claimants' costs resulting from one original cause is £1,000,000 except where the claim is for accidental bodily injury to an employee under contract of service to the insured and arises out of and in the course of such employment in which event no limit applies. The insurers will also pay defence costs and expenses incurred with its written consent."

Under the heading "Conditions", there are the following paragraphs:

"7. The insurer may take over and conduct in the name of the policyholder or insured with complete and exclusive control the defence or settlement of any claim.

8. The insurer may also start legal action in the name of the policyholder or insured (but at its expense and for its own benefit) to recover from others compensation in respect of anything covered by the policy.

9. The policyholder or insured must give the insurer all the help and information it may need to settle or defend any claim or to start legal proceedings."

The leading underwriter of the policy was the Sun Alliance and London Insurance Plc (Sun Alliance). All the parties to the action were in fact nominal. Insurers had the conduct of the action on behalf of the Plaintiffs and throughout Sun Alliance had the conduct of the action on behalf of Mr. Christopher.

As appears from paragraphs 12 and 13 of an affidavit sworn on 5th March 1996 by Mr. Fleeson, a partner in the firm of Solicitors, who have the conduct of this action on behalf of the Plaintiffs and their insurers prior to the commencement of the action, it was the Plaintiffs' and their insurers' understanding that Mr. Christopher was unemployed, had no significant assets and little income and that the Sun Alliance policy provided the only basis upon which any recovery might be made. Mr. Fleeson had also obtained, prior to the commencement of the action, a copy of the booklet containing the terms of the insurance policy. He therefore knew the limits of the public liability indemnity.

The action came to trial before His Honour Judge Bush. It lasted from 7th December 1994 to 22nd December 1994. On the first day of the trial, it was admitted that Mr. Christopher had been negligent. The action was fought on the issue of contributory negligence. Judge Bush handed down his judgment on 12th May 1995. He rejected the plea of contributory negligence, found for the Plaintiffs and awarded them the damages they claimed. That is a total of £1,129,212 plus interest and costs.

Section 51(1) of the Supreme Court Act provides:

Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in......

(b) the High Court....

shall be in the discretion of the court.....

(3) the Court shall have full power to determine by whom and to what extent the costs are to be paid.

In Aiden Shipping Co. Ltd v. Interbulk Ltd. [1986] A.C. 965 the House of Lords held, to the surprise of many, that this jurisdiction extended to ordering non-parties to pay the costs of litigation where justice so required. Since that decision the Courts have begun to formulate principles that should be applied to the exercise of this discretion. The relevant authorities are reviewed at some length in Murphy, and I do not intend to repeat that exercise in the present judgment. I shall simply set out the passage at p.528 of the judgment that lists the principles to be deduced from those decisions:

1. In Giles v Thompson [1994] 1 AC 142 at p.164 Lord Mustill suggested that the current test of maintenance should ask the question whether:

"there is wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse."

Where such a test is satisfied, I would expect the Court to be receptive to an application under Section 51 that the meddler pay any costs attributable to his intermeddling.

2. Where a non-party has supported an unsuccessful party on terms that place the non-party under a clear contractual obligation to indemnify the unsuccessful party against his liability to pay the costs of the successful party, it may well be appropriate to make an Order under Section 51 that the non-party pay those costs directly to the successful party. Such an Order may, for instance, save time and costs in short-circuiting the Third Party (Rights against Insurers) Act 1930. Bourne v. Coldense [1985] I.C.R. is a case where the Court might well have thought fit to make such an order had it appreciated that it had jurisdiction to do so.

3. Where a Trade Union funds unsuccessful litigation on behalf of a member the following factors, in addition to the funding itself, are likely to be present and, where they are, to make it appropriate to Order the Union to pay the successful party's costs should such an Order be necessary:

(a) an implied obligation owed by the Union to its member to do so - see 2. above.

(b) an interest on the part of the Union in supporting and being seen to support the member's claim.

(c) responsibility both for the decision whether the litigation is to be pursued and for the conduct of the litigation.

(d) expectation based on convention that the Union will bear the costs of the successful party should the member lose.

4. Where an unsuccessful Defendant's costs are funded by insurers who have provided cover against liability, which is not subject to any relevant limit, the same considerations that I have set out under 3. are likely to apply.

5. The position is more complex where a Defendant's costs have been funded by insurers at risk under a policy under which their liability is limited to a sum which is insufficient to cover both liability and costs.

I then summarised Judge Zucker's reasons in the present case, and expressed the view in relation to them to which I have already

referred. I continued:

I am not persuaded that it will always be appropriate to order liability insurers to pay the Plaintiffs' costs where they have unsuccessfully defended a claim made against their insured if the result of such an Order will be to render them liable beyond their contractual limit of cover. It seems to me that the appropriate Order may well turn on the facts of the particular case.

I then went on to summarise what seemed to me to be the relevant features of the position in Murphy:

1) Sun Alliance have had no interest in the result of this litigation, save insofar as this has affected their liability to pay costs.

2) Sun Alliance did not initiate the litigation. They were contractually bound to fund it up to their limit of liability of £25,000 and would, in consequence, have been better off if the litigation had never been commenced. It has not been suggested, nor could it have been, that Sun Alliance could properly have refused their consent to this litigation. Counsel had advised the Murphys that they had "a strong case".

3) Sun Alliance exercised no control over the conduct of the litigation.

4) Sun Alliance cannot be accused of "wanton and officious intermeddling" in the dispute. Legal expenses insurance is a respectable and well recognised form of insurance and is subject to express regulation under Statutory Instruments pursuant to the Insurance Companies Act 1982.

I observed that these facts did not bring the case within any of the previous authorities and observed:

The critical question is whether the mere fact that Sun Alliance have funded the Murphys' legal expenses under a policy of insurance, up to the limit of the cover under that policy, makes it reasonable and just that Sun Alliance should be ordered to pay Youngs' costs.

I concluded:

An Order under Section 51 that a non-party pay costs will only be justified when exceptional circumstances make such an Order reasonable and just. In this judgment I have explored some of the categories of exceptional circumstances that may justify such an Order. This case does not fall into any of them. I have reached the conclusion that the existence of legal expense insurance with a limit of cover that has been exhausted does not make it reasonable or just to order the insurer to pay the costs of the adverse successful party. For these reasons I would dismiss this appeal.

The facts of Murphy were remote from those of the present case, and I now turn to consider the factors which led Judge Zucker to make a costs order against the Insurers. The Judge referred to the following authorities: Hill v. Archbold [1968] 1 AC 686 at 694; McFarlane v. EE Caledonia Ltd No. 2 [1995] 1 Lloyds Rep. 535 and Condliffe v. Hislop [1996] 1 W.L.R. 753. He then observed:

In my judgment, those authorities clearly establish the principle that, as a general rule, in a business context, a party who maintains litigation should be liable for the costs of a successful adverse party. The authorities show that that is the case, even where the party does not have a direct interest in the litigation. The case for ordering the maintainer to pay costs is even stronger where, as here, the maintainer has a direct interest in the litigation and takes over the conduct and management of the action to protect that interest.

He later summarised the particular features of this case which, in his judgment, rendered it appropriate to give effect to the principle that he had identified:

(1) The plaintiffs' claim from the outset exceeded and was known by Sun Alliance to exceed the limit of the indemnity, i.e. £1,000,000.

(2) Sun Alliance had the sole conduct and direction of the defence which it pursued in order to protect its own interest, i.e. its liability to pay out £1,000,000 under the insurance policy. I reject any suggestion that Sun Alliance was acting in the interests of Mr. Christopher.

(3) Sun Alliance knew from the outset that Mr. Christopher had no means to meet any judgment or order for costs.

(4) Each and every one of the defences put forward by Sun Alliance were either abandoned or failed.

(5) By putting forward those defences, Sun Alliance and no one else caused the plaintiffs to incur costs of £250,000.

(6) Sun Alliance further prejudiced the plaintiffs by keeping them out of their money for three years and seven months and, in the meantime, had the use of £1,000,000.

In Murphy the Defendants did not suggest that Sun Alliance had been guilty of maintenance. I referred to the current test of maintenance in the passage that I have already cited at p.528 and stated that an order under S.51 was likely to succeed where that test was satisfied. In the present case there can be no question of that test being satisfied. The Insurers were not guilty of unlawful maintenance in supporting this litigation, notwithstanding that they have declined liability for the Plaintiffs' costs. Thus the simple principle propounded by Judge Zucker does not provide the answer in this case. Mr Crowther, Q.C., for the insurers, has argued that there is a further criticism to be made of Judge Zucker's approach. Mr Eklund, who argued the case below, had contended that it was unjust that the Insurers, by being ordered to pay costs, should be subjected to an overall liability which exceeded the limit of £1 million, which they had contractually undertaken. The Judge observed at p.12 of the transcript that the contractual position between Mr Christopher and the Insurers was not relevant to the issue which he had to determine. Mr Crowther has argued that the contractual limit of the Insurers' liability is a very relevant factor in the present case, relying particularly upon Tharros Shipping Co. Ltd and another v. Bias Shipping Ltd and others (transcript 20 November 1996), the appeal that was tried at the same time as Murphy. In Tharros this Court approved, on the facts of that case, an approach that made the liability in costs of the P.& I. Club which had supported the litigation of its member co-extensive with the Club's contractual liability to its member. Furthermore, in Murphy at p.528 I drew the distinction between the position of an insurer who has provided cover against liability without relevant limit of liability and the insurer whose liability is subject to limit. For these reasons I agree with Mr Crowther that the Insurers' contractual limit of liability is a relevant feature in the present case. In these circumstances I consider that Mr Crowther is correct to submit that this Court must exercise a fresh discretion in deciding upon the appropriate costs order. This is, however, a somewhat academic consideration for, but for one exceptional feature, the facts of this case are an example of a standard form situation which may well recur, and which requires an extension of the task of formulating principles which this Court addressed in Murphy. Before I turn to that task I must deal with the exceptional feature.

At the conclusion of the action, an agreed Order was made by the trial Judge, which included the following provision:

"The Defendant agrees to pay the Plaintiffs' costs. Such costs to be agreed and in default of agreement to be taxed on a standard basis"

In agreeing this Order, the Plaintiffs' Solicitors expressly reserved the right to argue that the Insurers should be liable for the costs of the action over and above the cover limit of £1 million. They made the same reservation when they subsequently accepted from insurers £990,000, together with £10,000 that had been paid into court "in full and final satisfaction of all claims against Mr Paul Christopher personally".

Mr Crowther accepts that the settlement agreement cannot prejudice the Plaintiffs' claim under Section 51, but he argues that the settlement should not result in the Plaintiffs being in a better position overall than they would have been had they not settled the Plaintiffs' claim. I accept the merit of that contention. By making a payment of £1 million by way of settlement of the judgment, the Insurers saved the Plaintiffs the delay and the costs that would have been involved in proceeding against the insurers under the Third Parties (Rights against Insurers) Act 1930. In exercising its discretion under Section 51 the Court should ensure that the Insurers are not worse off as a result of the settlement.

Had no settlement been made, the Plaintiffs could have sought an order for costs against the Insurers under S.51 and would then have had to make Mr Christopher bankrupt in order to pursue a claim under the 1930 Act. Mr Crowther argues that, had they taken this course, the Plaintiffs could not have recovered from the Insurers more than a total of £1 million. This is because any costs paid by the Insurers pursuant to an Order made under Section 51 would have discharged their liability under the policy to indemnify Mr Christopher in respect of his liability to pay the costs of the litigation and thus made inroads into the £1 million limit. Only the balance could have been recovered in the 1930 Act proceedings. As the Plaintiffs could not have recovered more than £1 million from the Insurers in the absence of the settlement and as they have already been paid £1 million under the settlement, no further payment should be ordered under Section 51.

This argument was not advanced before the Judge. Mr Crowther told us that it occurred to him as a result of the following comment that I made at p.529 in Murphy, in relation to the effect of Judge Zucker's order:

"...it is not clear to me why Sun Alliance will not be entitled to take account of the costs that they pay in consequence of his Order when calculating their residual liability under the policy, in which case the plaintiffs will be no better off at the end of the day"

When I made that comment I was unaware of the settlement. Mr Shepherd for the Plaintiffs has, however, persuaded me that, even if the settlement had not taken place, any payment made by the Insurers pursuant to Judge Zucker's Order would not have been treated as discharging in part the insurers' liability to Mr Christopher under the policy. This is because such payment would be made to discharge the Insurers' own liability to the Plaintiffs under the policy and not by way of an indemnity to Mr Christopher. The Insurers' liability to Mr Christopher would have remained at £1 million. Thus, absent the settlement, the Plaintiffs could have recovered costs against the Insurers under Section 51 and £1 million under the 1930 Act proceedings. The settlement poses no impediment to the Plaintiffs' claim under Section 51. I turn then to consider the merits of that claim.

Mr Crowther submitted that this case lacks the exceptional features that will always be a pre-requisite to an order for costs against a non-party - see Aiden Shipping at p. 980 and Symphony Group plc v. Hodgson [1994] QB 179 at p.192. The features relied upon by the Plaintiffs to justify seeking a costs order against the insurers include the following:

1) the insurers determined that the claim would be fought;

2) the insurers funded the defence of the claim;

3) the insurers had the conduct of the litigation;

4) the insurers fought the claim exclusively to defend their own interests.

5) the defence failed in its entirety.

In my judgment all these features are established. Only the fourth has been challenged by the insurers. Judge Zucker rejected their submission that the defence was undertaken, in part, in the interests of Mr Christopher and so do I. Mr Christopher was without means. Had the insurers requested him to agree to a settlement at the outset I have no doubt that he would have agreed. In any event, the insurers were contractually entitled to require him to do so and I have no doubt that they would have taken this course had it been necessary and had they thought that it was in their best interests.

In the context of the insurance industry, the features to which I have just referred may not be extraordinary. But that is not the test. The test is whether they are extraordinary in the context of the entire range of litigation that comes to the courts. I have no doubt that they are. It must be rare for litigation to be funded, controlled and directed by a third party motivated entirely by its own interests. These are not the only relevant features of this case. The insurers rely particularly upon the following further features:

6) their interest in the litigation only arises because of a policy of insurance which ensures the Plaintiffs a recovery when otherwise they would have none;

7) their liability under that policy is subject to a contractual limit.

8) they acted both bona fide and reasonably in fighting the claim.

The combination of all these features is one which must be experienced from time to time in the field of liability insurance and the question of whether or not they justify making a costs

order against the insurers raises a question of principle of some importance.

The insurers argued that public policy requires that insurers should not be rendered liable to costs in circumstances such as those of the present case. They advanced three arguments in support of this contention.

First they argued that a plaintiff must take his defendant as he finds him. Where, as here, the Defendant is impecunious, he is nonetheless entitled to defend the claim. Where he does so, the Plaintiff will not recover his costs. Similarly, a Defendant with only limited funds is entitled to use all those funds in conducting his defence, even though this will deprive the Plaintiff of the fruits of success in the litigation. The Plaintiffs should not be in a better position because the Defendant is insured.

This argument begs the question. The basis upon which the Plaintiffs have sought a costs order against the insurers is that, in reality, it is the insurers rather than Mr Christopher who are the defendants. Nor can I see any principle that requires the Plaintiffs to be placed in no better position when suing an insured defendant than when suing a defendant who is uninsured. There are some circumstances where the law requires the fact of the existence of insurance to be ignored. Once judgment has been obtained, however, the law makes provision to ensure that the plaintiff is better off because the defendant is insured - see the Third Parties (Rights against Insurers) Act. Where costs fall to be considered I can see no reason in principle why the Plaintiffs should not be better off because the defendant is insured if justice otherwise so requires. If, in the present case, the policy of insurance had provided cover without limit, I do not believe that the insurers would be challenging their liability to pay the Plaintiffs' costs. This brings me to the principal argument relied upon by the insurers.

The insurers argue that it is unjust and undesirable that they should be exposed to greater overall liability in relation to damages and costs than the limit of £1 million to which the policy was subject. They provided cover to Mr Christopher in respect of both liability and costs that was subject to a limit of £1 million. This provided a benefit to the Plaintiffs, but the benefit was subject to a limit. That limit should be respected. The premium reflected it. If costs orders are to expose insurers to liability beyond the policy limit, liability insurance will be discouraged.

I do not think it right to approach the issue in this case on the footing that the insurers were philanthropically providing the Plaintiffs with the benefit flowing from the insurance cover and that it shows an unworthy lack of gratitude on their part to seek to obtain more. The insurance cover was provided because it was paid for and the Plaintiffs were entitled to the benefit of it because the law so provides. Nor am I moved by the argument that premium rates for liability cover will go up if insurers are at risk as to costs orders which expose them to liability in excess of their contractual limits. There is no evidence as to the extent to which this is likely to be the case, if at all, but in any event I see no reason why the assured should not be expected to pay a premium which properly reflects the insurers' exposure to costs orders if the interests of justice otherwise require that the insurers should be subject to such exposure.

As to the insurers' argument that it is inherently unjust that they should be exposed to a total liability that exceeds the policy limit, I do not agree. Where insurers are contractually liable to indemnify an impecunious defendant in respect of his liability in costs, this can constitute good reason for an order under Section 51 that the insurers pay those costs. The effect of the policy limit in this case means that this reason is absent. It does not follow, however, that no costs order should be made against the insurers. To make such an order is not to rewrite the policy. It is to impose on underwriters a liability which is independent of the policy. The grounds advanced by the Plaintiffs for imposing such liability do not turn on the terms of the policy, but on the action that underwriters have chosen to take pursuant to those terms. This brings me to the third argument relied upon by the insurers.

The insurers argue, and I quote from their skeleton argument, that "insurers who have legitimate commercial interests in defending proceedings and who thereby afford access to justice to impecunious assureds should be encouraged to defend actions on their merits without fear that they will be subject to additional orders for costs if their quite legitimate arguments are not preferred at trial". In my judgment this argument turns the relevant principle on its head. That principle is that costs should normally follow the event. It is currently reflected by the provisions of Order 62 rule 3 of the Rules of the Supreme Court. Judge Zucker referred to the statement by Sir Thomas Bingham M.R. in Roache v. News Group Newspapers Ltd. (Transcript 19th November 1992) that the principle is "of fundamental importance in deterring Plaintiffs from bringing and Defendants from defending actions which they are likely to lose". This does not mean that the principle only applies where a party has acted unreasonably in litigating. Were that the case awarding costs would involve an enquiry that might be as substantial as the litigation itself. The averment by the underwriters that their arguments in resisting the claim were "legitimate" is not only tendentious but also irrelevant. Whether, from the viewpoint of the costs order, a litigant was justified in contesting the litigation is normally to be judged simply from the result.

In this litigation the underwriters were the Defendants in all but name. By reason of the Third Parties (Rights against Insurers) Act they were contingently liable to the Plaintiffs up to the policy limit of £1 million. They took the decision to contest the litigation, and subsequently conducted the defence, in an attempt to avoid or reduce their liability to the Plaintiffs. In these circumstances I agree with Mr Shepherd that this is a paradigm case for the exercise of the Court's discretion under Section 51 to make a costs order against a non-party.

There is one additional feature in this case which reinforces the merits of the Plaintiffs' application. Because the Plaintiffs have been held entitled to damages which exceeded the policy limit of £1 million, they have been unable to enforce the award of interest on those damages. They have received no compensation for being kept out of their money during the three years that elapsed before judgment was given in the action. During that period the insurers have enjoyed the use of that money. In an ideal world, the Court might have jurisdiction to award interest against the insurers to redress the balance, but it does not. As it is the burden of having to pay the Plaintiffs' costs will be off-set by the benefit of the use of £1 million over three years. Conversely that burden will have prevented the insurers from reaping a financial benefit from defending a claim on grounds which have proved to be without merit. This is a satisfactory result.

By way of postscript I should recognise the fact that the Plaintiffs, also, are litigants only in name. They have been indemnified by their insurers, who have conducted this litigation in the exercise of their rights of subrogation. This in no way undermines the Judge's decision. Had the Plaintiffs' claim failed I have little doubt that their insurers would have discharged the Plaintiffs' liability under the costs order that would have resulted in favour of the Defendant. Had they not done so, it would have been appropriate to make an order under Section 51 requiring them to pay the defendant's costs. What has been sauce for the goose would have been sauce for the gander.

For the reasons that I have given I would dismiss this appeal.

LORD JUSTICE WALLER:

I agree.

LORD JUSTICE MUMMERY:

I also agree.

Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.