England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Hart)

		Royal Courts of Justice Strand London WC2 Monday, 18th April 2002

1. LORD JUSTICE BUXTON: This is an application for security for costs against an appeal pending in this court which is due to be heard on, I am told, 29th and 30th April. The appeal is being brought by two interveners, Robin James Symes ("Mr Symes") and Robin Symes Limited ("RSL"), who intervene in an action between the administrators of the estate of Mr. Michailidis and Messrs Eversheds, a well known firm of solicitors. The administrators seek to obtain from Messrs Eversheds various documents which they say they require in order to administer Mr. Michailidis's estate. Mr. Symes, and in some way not at the moment clear to me RSL, have in the past been closely associated with Mr. Michailidis. They have intervened in this action to express a fear that documents that may appear to fall under the ownership or control of the administrators may in fact be confidential documents held by Eversheds as the solicitors of Mr. Symes and RSL.
2. Hart J, who has had the burden of dealing with the whole of this tangled story, made an order that was intended to provide a process whereby Messrs Eversheds could properly and fairly assess whether any particular document before them was or was not the property of the interveners.
3. The interveners have objected to the terms of his order and have appealed to this court. The judge gave permission for that appeal but on a subsequent occasion expressed substantial doubts as to whether he had been justified in granting permission. I will say nothing about the prospects of that appeal succeeding, save that the considerable study that I have made of the substantive case does not indicate that the appeal is one that is self-evidently going to succeed.
4. The application for security comes about because the applicants fear that RSL, a limited company, does not have sufficient assets to pay their costs, and they complain that Mr. Symes is ordinarily resident out of the jurisdiction in Geneva; that he has gone there in order to impede the process of administration and the process of enforcement; and that he has generally sought to evade enforcement of substantial costs ordered against him. I should also add that it is plain from other documents in the case that Mr. Symes has substantial debts, not least to his previous legal advisers, but at the same time he appears to have or potentially to have access to considerable numbers of works of art in the shape of his stock-in-trade as an art dealer, connoisseur or collector.
5. On the evidence before me, none of which has been filed in this application either by Mr. Symes or by RSL, I am not satisfied that Mr. Symes left the jurisdiction in order to avoid enforcement, although it is true that his affairs do appear to be of a very tangled nature. The difficulty for him, however, and by the same token the difficulty for the claimant, arises because of the relationship between Mr Symes and RSL Limited. I am satisfied that the new solicitors advising, as it appears, both of those parties, have had adequate notice of this application, but neither has appeared before me this morning.
6. On the evidence before me, which I am not going to detail, I am satisfied that RSL is in significant danger of not being able to meet any order for costs. I have come to that conclusion not only on the basis of the evidence that has been filed but also because RSL have not filed any accounts since 1998, and the court will make adverse inferences against a company that fails to file accounts and where no explanation has been given on its behalf, either of the failure or of its present financial position. I therefore think it right and equitable and justified that an order for security for costs should be made against RSL.
7. The position of Mr. Symes is more difficult but the significant features in this case are: (1) RSL is completely owned by Mr. Symes and he effectively controls the company; (2) they have throughout, or at least until very recently, been represented by entirely the same solicitors and counsel, incurring the same costs, and (3) no distinction appears to be made anywhere in the substantive proceedings between documents claimed by Mr. Symes and documents claimed by RSL. They are, in the pleadings, in the affidavits, and in Mr. Symes' substantial affidavits in other proceedings, referred to indifferently as making common cause. It would therefore in these circumstances be wholly artificial if security and therefore an order for a stay were to be made against RSL on the grounds that I have indicated, but that Mr. Symes himself should be free to pursue the appeal, effectively in the name of RSL, if security is not given.
8. I therefore think that the just order in this case is as follows: (1) Robin Symes Limited will within 14 days lodge with the Registrar security in the sum of £25,000 in respect of the costs of the appeal in this matter; (2) the appeal, both of Robin Symes Limited and of Mr Robin James Symes, shall be stayed pending the lodging of that security.
9. Because neither party is represented, as a matter of indulgence I give them both liberty to apply should they seek to set aside or qualify the order that I have just made. That will operate in the following way: (1) the claimants' solicitors will give an undertaking that they will today notify the terms of this order to the new solicitors, Peters & Peters, and in the event of their indicating that they are not instructed will notify in such manner as may be possible Mr Robin James Symes and Robin Symes Limited. Such notification may be made in the first instance by telephone and subsequently by fax or other convenient method. That must be done today before the order is formally drawn. (2) There will be liberty to Robin James Symes or Robin Symes Limited to apply under the terms of this order. Any such application must be notified to the Registrar of this court by 12 noon on Wednesday, 27th March, and a copy of it furnished to the solicitors for the claimants. In the event of any application being made to set aside the order that I make this morning, that application will be listed before me for a half an hour appointment at some convenient time in the week beginning 8th April. I record the substantial importance of this matter being sorted out in a definitive way in a proper period of time before the date for the hearing of the appeal on 29th April.
Orders: Applications allowed as per judgment with costs summarily assessed in the sum of £6,500 jointly and severally against both of the interveners; liberty to apply. (Order not part of the judgment of the court)