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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Antonelli v Allen & Anor [2001] EWCA Civ 1563 (16 October 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1563.html
Cite as: [2001] EWCA Civ 1563
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Neuberger)
Strand London WC2 Tuesday, 16th October 2001 |
||
B e f o r e :
____________________
| FARZANI ANTONELLI | ||
| Appellant/Respondent | ||
| - v - | ||
| (1) HARVEY MICHAEL ALLEN | ||
| (2) JONATHAN BARRY KANDLER | ||
| Respondent/Applicant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Applicant.
MR NIGEL LEY (Instructed by Bray Walker, 36 Furnival Street, London EC4A 1JQ)
appeared on behalf of the Respondent
____________________
Crown Copyright ©
- LORD JUSTICE ROBERT WALKER: This is an application for security for costs of an appeal which is due to be heard at an unspecified date in the reasonably near future. The applicant is a solicitor, Mr Jonathan Kandler, the respondent to the appeal. The respondent to the application is Mrs Farzani Antonelli. She has obtained permission to appeal from an order of Neuberger J made on 29th November 2000 dismissing her action against Mr Kandler in respect of money paid to Mr Kandler's former partner, Mr Harvey Allen.
- The facts of the case were, as Neuberger J said, unusual. They were unusual to say the least. The sum of £100,000 had been paid to Mr Allen in 1992 in circumstances which can only be described as dubious.
- Mrs Antonelli and her husband then lived in England in a house at Clapton, London, E.5. They were in arrears with their mortgage and were facing proceedings by the building society. Mr Antonelli seems to have had various property investments through private companies, and some of those also seem to have been in difficulties. There is a strong suggestion, but in the nature of things no definitive finding, that the money was paid to Mr Allen in an attempt to keep it out of the hands of creditors.
- It was said, and correctly said, that Mr Allen failed to account for the money. He claims to have paid away some of it under the directions of Mr and Mrs Antonelli, or one of them. Eventually, under pressure from the Jewish Religious Court, Mr Allen paid out the sum of about £70,000. That was paid to a bank account which the Antonellis had in Israel. Mrs Antonelli sought to recover the balance of about £30,000 from Mr Kandler on the basis that he was responsible for his partner's default. I should add that Mr Allen had in the meantime been struck off the roll of solicitors.
- When I gave permission to appeal on paper I described it as a difficult appeal which should however be considered by the full court. It may be that the outcome of the appeal will be influenced by the decision of the House of Lords in the pending appeal in the case of Walker v Stones [2001] 2 WLR 623. However, the House of Lords is not going to hear that case this term, and it is quite uncertain when the decision of the House of Lords will be available or how clearly it will cover the rather different situation which arises in this case. I observed in the course of argument that the prospects of success on an appeal are rarely determinative of an application for security for costs; and Mr Nigel Lee (appearing for Mrs Antonelli) accepted that that is right.
- Security for costs of an appeal is now regulated by rule 25, paragraphs 13 and 15 of the Civil Procedure Rules. These must be read in the light of the decision of this court (in the persons of Simon Brown and Mance LJJ) in the important case of Nasser v United Bank of Kuwait 11 April 2001, neutral citation number 2001 EWCA CIV 556. That decision makes plain that an order against a claimant or appellant resident outside the jurisdiction, and outside countries covered by the Brussels Convention or the Lugano Convention, must still be proportionate and must not be discriminatory in its effect.
- The application made today is based on subparagraph 2(a) and (as a bit of a last minute afterthought) 2(g) of paragraph 13, read with paragraph 15. Subparagraph 2(a) relates to a claimant, or appellant, who is non-resident in the sense which I have indicated. Subparagraph (g) enables an order to be made against a claimant or appellant who "has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him".
- I am satisfied on undisputed evidence that Mrs Antonelli is a person within sub-paragraph 2(a). Until a few minutes ago it appeared from all the documents that I have seen that she is now permanently resident in Israel, and the applicant obtained evidence from an Israeli lawyer (Mr Peter Naschitz of Naschitz, Brandis & Co of Tel Aviv) as to the likely costs and the likely quantum of irrecoverable costs on enforcement procedures against Mrs Antonelli in Israel.
- However, Mrs Antonelli's solicitors have written to the applicant's solicitors in a letter dated 12th October last, stating that it has recently come to their notice that within the last few months Mrs Antonelli has been divorced and has now moved permanently to the United States and is living New York. I have to say that it is symptomatic of the way that this matter has been dealt with on Mrs Antonelli's side that that together with a skeleton argument (which likewise reached me at the last possible moment) has been the only response to an application for security for costs which has now been on foot for some months.
- Mr Daniel Gerrans (appearing for the applicant) says that if Mrs Antonelli is now living New York rather than in Israel his case is made that much stronger, since between this country and the United States there are no means of reciprocal enforcement of judgments, as indeed appears from the case of Nasser v United Bank of Kuwait.
- As to sub-paragraph 2(g) of paragraph 13, Miss Charlotte Davies says in her fourth witness statement that the failure of Mrs Antonelli's solicitors to respond to queries about the fate of the £70,000 which was recovered by Mrs Antonelli (and of which no mention has since been made) raises an inference that she has dealt with that sum in such a way as to put it beyond the reach of creditors and that therefore she should be regarded as falling within paragraph 2(g) as well. That point was made to the solicitors for Mrs Antonelli last July, but it has produced no response whatever, not even any last minute response. Mr Gerrans asks, in his skeleton argument, for security to be ordered in the sum of £10,000. Mr Lee argues that that would be an excessive sum, bearing in mind that the appeal will deal with only a short point, as he submits, and that if the appeal is unsuccessful his client will have no defence to a claim for enforcement and that the costs of enforcement should be small. However, I am not prepared to assume in the absence of evidence that the costs of enforcing a judgment against Mrs Antonelli in New York would not be substantial and would not, for the most part, be irrecoverable. I am also satisfied in the absence of any rebutting evidence from Mrs Antonelli that this case should properly be dealt with under paragraph 13(2)(g) as well as paragraph 13(2)(a).
- I am not persuaded that the sum of £10,000 is in the circumstances excessive. I shall order security for costs in the sum of £10,000 to be provided by 4.00 p.m. on Tuesday 30th October 2001. If it is not provided by then the appeal will be struck out automatically. The appeal will be stayed in the meantime.
Tuesday, 16th October 2001