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 BRIGGS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th April 2009

Lord Justice Lloyd:

1. The appeal which we have had to consider this afternoon arises from a judgment of Briggs J given on 15 November 2007 following the hearing on 7 November of a number of applications, in particular those contained in an application notice of the defendants dated 12 October 2007. By that application, the defendants sought, in effect, first an order requiring one of the claimants, Red River UK Ltd, to register a charge at Companies House; secondly, an order requiring Red River to deliver the executed charge to the defendants; and thirdly, the variation of an order which restrained the defendants from making further applications to HM Land Registry in relation to the title to the relevant property for the time being. This was one of a series of applications issued by the respective parties in a very acrimonious and active litigation which still continues towards the trial, which we are told is shortly to be fixed, and is expected to be fixed for a date in the course of 2010.
2. The relevant property is in Stoke Newington Road, N16. It is registered in the name of Red River. It is subject to a debenture in favour of the Bank of Scotland which prohibits, among other things, the creation of any charge over the property without the consent of that Bank. The second defendant is a shareholder to the extent, I believe, of 35 per cent in Red River. The second claimant is the other shareholder. The first defendant is the second defendant's daughter, and is a solicitor. Unless otherwise stated, I draw no distinction between the defendants for present purposes.
3. The issues on the appeal have narrowed somewhat in the course of today, and I need to say rather less than I otherwise would have done about the course of the proceedings. The judgment of Briggs J is available under neutral citation number [2007] EWHC 2654 (Ch), and the other important source is a judgment of Rimer LJ given on 15 December 2008 on the oral renewal of the application for permission to appeal, which is available under the neutral citation number [2008] EWCA Civ 1512. Both of those judges refer to the history as it was up to the date on which they respectively gave their judgments, and those interested in the proceedings can readily find an account of the history in those two judgments.
4. Briefly, the parties entered into a settlement agreement on 29 June 2007 at the conclusion of a mediation, compromising a number of actual and potential claims in actual and contemplated proceedings. By the settlement agreement Red River agreed to pay the defendants £300,000 by 31 July 2007 and £900,000 by 29 December 2009. Among other conditions, Red River was at a certain stage to enter into a legal charge in a form approved by the Bank of Ireland and reasonably acceptable to the first defendant, with certain provisions to be contained in it. Although not so expressed, the settlement agreement was entered into in contemplation of the refinancing by Red River of its obligations under which the Bank of Ireland, it was hoped, would advance enough money to allow the £300,000 to be released and the legal charge would fit in in that context.
5. I should say that a significant feature of the submissions of Miss Sheikh, the first defendant, who has appeared in person before us this afternoon, is that in the course of 2007, if not already by the time of the settlement agreement then at any rate in the course of the following three or four months, Red River and its solicitors were in fact planning a quite different transaction from that which they represented that they were seeking to organise, and that may well turn out to be an issue at the trial.
6. As I say, the settlement agreement was entered into; but despite that agreement the parties remained at loggerheads, and a number of things that were required to be done by that agreement were not done. As Briggs J said in paragraph 17 of his judgment, he considered that the legal charge was intended to be entered into as part and parcel of the composite transaction between Red River, the Bank of Ireland and the defendants, and that composite transaction was something which did not materialise as had been hoped, and certainly did not proceed in time to allow the £300,000 to be paid in accordance with the agreement. That sum was not paid and has not been paid.
7. A number of applications to the court followed, in the hope of breaking what was seen as an impasse, including a Tomlin order made on 3 September 2007 on an application to Kitchin J. This too did not work, in the sense of achieving the purpose it appears to have been intended to achieve. A number of further applications followed over the following two months. By 2 October 2007, in the course of which there were what amounted to several hearings before Briggs J, the terms of the proposed second charge had been settled by the court, as had those of the deed of priority that was also required, and it seems that the second charge had been executed by Red River and the deed of priority by the relevant defendant.
8. On 2 October Briggs J, among other things, ordered the defendants to withdraw an application which they had made to the Land Registry to register a charge which had not at that stage been executed by Red River upon delivery of a letter from the Bank of Ireland's solicitors stating that the priority deed had been executed by the Bank, and undertaking that, on registration of the Bank of Ireland's first charge, the Bank would simultaneously register the priority deed and apply for the registration of the second charge. The order also restrained the defendants from making further applications to the Land Registry pending the registration of the three elements of the composite transaction, which were the first charge in favour of the Bank of Ireland, the second charge in favour of the defendants, and the deed of priority.
9. The judge noted that, although the priority deed had been executed by the defendant, because it was one of a number of documents requiring simultaneous completion as part of the composite transaction, it did not come into immediate effect by virtue of her executing it. In effect, it was executed in escrow, conditional on the other documents also being executed.
10. Matters proceeded; it appears to have been the case, or at any rate to have been believed to be the case, that the composite transaction might be completed on 5 October. But on 3 October, the first defendant presented a winding up petition in relation to Red River; and not surprisingly, when that came to light on 5 October, it was seen as subverting the possibility of completing any transaction which involved a disposition by Red River, since it would have been void under Section 127 of the Insolvency Act. Briggs J struck out that petition on the same day, but since the petitioner was not represented at that hearing, she plainly had, and was expressed to have, the right to apply to reinstate the petition. The Bank of Ireland withdrew its offer of facilities on 8 October. Briggs J said at paragraph 30 of his judgment that the composite transaction was, from that date, at an end. Red River then sought to find another source of financing, and that was the background for the defendant's application notice of 12 October seeking, in effect, specific performance in part of the settlement agreement by the delivery of the second legal charge in favour of the defendants.
11. The judge considered that application and he heard the application on 7 November. He gave judgment on 15 November in relation to that application notice, and also a number of other applications which are no longer relevant. He rejected the application in relation to the registration and delivering up of the charge. He said at paragraphs 35 to 36 of his judgment that the charge, although executed, was not effective unless or until the composite transaction took effect; and since it was clear that it never would do so, the claimants' undertaking to register the legal charge would not come into effect either. He went on to accept a separate argument from the claimants that the failure of the composite transaction was due to the acts of the first defendant. At paragraphs 37 to 44 he said that the first defendant had acted in breach of an implied obligation of good faith in respect of the composite transaction by taking steps to sabotage it, and her flouting of the contractual obligations constituted an equitable bar to her seeking specific performance. For those reasons, he refused to consider the first two orders sought. He went on to consider the third, concerning the injunctions as regards dealings with the Land Registry, which he also refused for reasons given at paragraphs 45 to 56.
12. He rejected one argument put on this point on behalf of Red River by Mr Smith, who appeared then as today for the claimants, but he approached the matter differently at paragraphs 49 to 55, and held that the only point of communications with the Land Registry would have been, as Mr Hugo Page Q.C., then appearing for the defendants, the applicants, put it, to protect an equitable right to a charge arising under the settlement agreement. He rejected that as unarguable for the same reasons that he had given in relation to the first two applications. He declined to consider the balance of convenience in paragraph 52 of his judgment but held that the defendant did not have an arguable case for saying that there was anything on which they could legitimately communicate with the Land Registry about this. He refused permission to appeal; he extended the injunction until 15 December 2007; that is now spent and is no longer a live issue.
13. The defendant served an appellant's notice against this order; it was a few days out of time. The grounds of appeal are set out over some 21 pages of text under six headings. By that notice, the defendants sought to set aside every single aspect of the judge's order. Sir John Chadwick refused an extension of time for this and other applications on considering the matter on the papers on 19 June 2008, but the defendants requested an oral hearing, as they were entitled to. That came before Rimer LJ on 28 August 2008, the appellants being represented by Mr Page Q.C. leading Mr Beaumont. The defendants had also made some other applications which the judge did not have time to deal with, and they were adjourned. They came on before the same judge on 15 December, with the appellants represented by other counsel. On that occasion he gave judgment on all these applications, granting an extension of time for the one relevant appeal but refusing permission to appeal on two out of the three points which were put before him as the grounds of appeal by Mr Page. He also refused extensions on the other applications.
14. In view of Mr Page's crystallisation of the grounds of appeal in his skeleton and his advocate's statement for the purposes of that hearing, I can take the grounds from that without examining the original formulation. They were, first, whether the judge's decision that the obligation to provide the second charge was dependent on the Bank of Ireland remortgage, that is to say, in effect, as part of the composite transaction, was wrong; secondly, whether the judge was justified in depriving the defendants permanently of their security on witness statement evidence without a trial; thirdly, whether the balance of convenience favoured the delivery of the security up to the defendants.
15. Rimer LJ in his judgment came to this aspect of the matters before him at paragraph 51 onwards. He rejected the construction point at paragraph 53, saying that it provided no real prospect of success on appeal for reasons which he gave. He said he could see no answer to the judge's reasoning at paragraph 35 of his judgment as to why the defendants were not entitled to delivery up of the second charge. He also rejected the third point; that is to say, the balance of convenience as not assisting the appellants if, as he considered, the construction point was hopeless. So he was left with the second point which had been put forward, as saying that the judge was not acting properly in depriving the defendants permanently of their security without a trial.
16. The substance of this point as he saw it was that the judge had at least arguably purported to make final findings of fact as to (a) the facts and (b) the legal consequences of the defendants' conduct. He dealt with this at paragraphs 55 to 57 of his judgment. Mr Page was able to show him that the claimants had by then pleaded, in an amendment to the Particulars of Claim at paragraph 54, not only Briggs J's findings, but that they were final findings and that they were res judicata as between the parties. The judge refers to the fact that Mr Page argued that the judge below could have refused the application on the basis of an arguable case as to breach of the obligation of good faith, but he could not properly make what purported to be final findings of fact without oral evidence; and that if the findings were properly regarded as res judicata, the defendants could never have the opportunity of a trial of this issue. Rimer LJ dealt with this point at paragraphs 56 and 57 of his judgment, and in the light of the narrowing of the issues to which I have referred and of the availability of his judgment I need not read that, which otherwise I might have done.
17. Rimer LJ refused permission to appeal on the construction ground and the balance of convenience ground, and granted it only on the limited question of whether the judge had been wrong to make final findings rather than only to consider the matter on the basis of a good arguable case. He expressly referred to the fact that appeals lie only against orders and not against findings, and that that might pose a difficulty, since he was clearly not intending to give permission to appeal against the orders which he regarded as a correct disposal of the interim application beyond any realistic possibility of argument to the contrary on appeal, and he asked on what basis might the Court of Appeal review the judge's findings. But he considered that particularly because of the res judicata point and the allegation it was right that that should be capable of challenge in the Court of Appeal. He formulated a ground of appeal accordingly. He permitted the appeal to proceed on that sole ground, and in accordance with his order the defendants then amended the appellant's notice to rely on that ground only, although they did not at that stage, as he had not required them to do, amend that part of the appellant's notice in which they indicate that they seek to have every aspect of the order below set aside.
18. Following the service of the amended appellant's notice late in December 2008, the respondents served a respondent's notice. In that respondent's notice, they made two points. They said they would contend that the judge did not decide finally that the defendants acted in breach of the implied obligation of good faith, but only that the respondents had a good arguable case to that effect. Further, or alternatively, they said that they do not seek to uphold the judgment to the extent that he did make any final decision, and if that was the decision of the judge the respondents would consent to the judgment being varied in the appropriate way.
19. That was then taken up in correspondence, and by early in February the respondents had taken the position, it being pointed out that their pleading was inconsistent, that they reiterated that they did not seek to uphold the judgment on the basis of any final and binding determinations, and they said, in a letter dated 5 February:

"We propose at the appropriate time to seek permission to reamend the Particulars of Claim to reflect this position."

They concluded the letter:

"On that basis we see no purpose served in you continuing with your appeal in the Court of Appeal, and invite you to withdraw it forthwith."

That was no doubt somewhat overoptimistic, and Miss Sheikh would have been perfectly entitled to say, at the very least, let me see your proposed amendment.

20. An amendment was put forward and was considered at a case management conference on 9 March 2009 heard by Henderson J, who is now the assigned judge for this litigation. As it happened, the matter did not proceed in the most straightforward of ways. The amendment to the pleading does, as we have been shown, assert that although the claimants say that the judge's findings were correct, they accept that they were made on an interim basis, and they have deleted the sentence by which they say that these findings are res judicata between the parties, although they seek to adopt those findings as part of their case in these proceedings.
21. Henderson J granted permission to make those amendments, and on an application to set aside that grant of permission, on which there were written submissions by Mr Newman counsel on behalf of the defendants, he stood by that order. He rejected the application to set it aside, and so that is now the state of the pleading. In other correspondence after the beginning of the year, the defendants sought the claimant's agreement to the terms of Briggs J's judgment being revised as to its text. The claimants' solicitors said that that was not an appropriate course, and for my part I would agree; the practical issue would be as to the effect of the judge's findings.
22. As the matter proceeded towards the appeal, the appellants, not accepting the proposition that there was nothing left in the appeal, first of all lodged a very large number of bundles amounting in context to well over 2,500 pages, by way of the appeal bundles, which I have to say I regard as altogether excessive. But on 7 April, Mr Hugo Page put in a skeleton argument in which he said that, in the light of the concession by the respondent's notice, it was not a final finding and should not be so treated, the only issue left in the appeal was whether in the light of that concession the Court of Appeal ought to order interim delivery up of the second charge, and it was further said that the appellant wished to adduce further evidence. That therefore appeared to be indicating that, despite Rimer LJ's refusal of permission on the substantive applications, that point was to be renewed.
23. That was the position as it appeared until this morning. I should say that, in response to that skeleton, Mr Smith for the respondents put in a skeleton of a mere 27 pages, in the course of which his best point was put in one paragraph at paragraph 18; namely, that permission to appeal had been granted on a different basis, and that the only point granted raised by that ground of appeal had been met by the concession there was therefore no reason for the appeal to proceed any further. He then dealt in the following 20 pages on an alternative basis, in case the court was willing to allow the appellants to reconsider generally the judge's decision to dismiss the application, and at great length it was explained why the judge had been absolutely right to do so.
24. This morning, however, we were notified that Miss Sheikh had decided to dispense with the services of Mr Page, in the light of the fact that she said in her own new skeleton argument that the issue, or the principal issue, was now one of costs. She said as the issue before the court is now limited to costs, it was considered more appropriate for the appellants to appear as litigants in person. Miss Sheikh, as I say, put forward a short skeleton in which she raised a question as to costs seeking the appellants' costs of the appeal, and the first steps towards an order against the respondents' solicitor that he should pay the costs personally; seeking also permission to adduce further evidence, and an application designed in due course to renew an application for permission to appeal against the order of 22 October, which is one of those on which Rimer LJ refused an extension of time. Miss Sheikh has put before us a good deal of material and arguments in support of saying that the respondents should pay the appellants' costs of the appeal, and laying the ground for a contention that if necessary those should be ordered to be paid by the respondents' solicitor personally.
25. Those matters have, by and large, related to matters of conduct relating to the period before Briggs J's order under appeal. What is said, and I can refer to it in the most brief and general terms, is that the respondents were engaged in a concerted attempt, which she would say was partly successful, to pull the wool over the eyes not only of herself but of the court in the course of the summer and autumn of 2007; and that Briggs J, among other judges, was misled into making a number of his orders. She submits that this is relevant to the question of the costs of the appeal, on the basis that conduct of the parties is always a matter relevant to costs.
26. Clearly the rules and practice directions do indicate that the court must consider on any question of costs the conduct of the parties. The starting point in relation to the question of costs, as it seems to me, is that the appellants brought the appeal on a wide variety of grounds; they failed to get permission to appeal except on one of those grounds; the ground on which they obtained permission was not one which went to the rightness or otherwise of the judge's order but only to the status and rightness of the expression of certain of his findings; but they did get permission in that respect, and they have obtained in substance what they could reasonably have hoped for from that, in that the pleading of the claimants, which asserted that these findings were binding, has been amended, and it is no longer asserted that they were binding. That shows, one could say, that the appellants have succeeded, albeit to a much more modest extent than they set out to at the stage of the original appellant's notice, and indeed to a more modest extent than it appears from Mr Page's skeleton of 7 April that he was hoping to achieve himself at this hearing. But they have, as it seems to me, achieved in that way, through the concession of the respondent's notice and the amendment of the Particulars of Claim, the most that they could have hoped for from this particular ground of appeal.
27. Miss Sheikh sought to show us that the claimants had been two-faced about this particular point, but the matters that she showed us related to the period before the Particulars of Claim were allowed to be reamended, and so far as I could see she only relied on the fact that they were making an application for what she said was substantive relief but was clearly in fact put forward on an interim basis, and one which failed at a time when they had not yet amended their pleading. I would not regard that as a matter of relevance to the conduct of the appeal. Equally, in support of her case that Briggs J and other judges were being misled, she put before us a good deal of documentation on what it seemed to me might be said to have been a rather selective basis, which is not material that was in evidence before Briggs J and has not been properly brought before us on an application to adduce further evidence. It is fair to say that some of it appears to have been obtained by Miss Sheikh only very recently, by virtue of an order in proceedings below. Whether she is entitled to any remedy if she is able to assert that Briggs J or any other judge was misled is not a question for us to consider, it being dependent clearly on issues of fact which we are in no position to investigate.
28. It seems to me that the issue remains one of costs of the appeal; and the short point is whether, as Miss Sheikh says, she should get her costs of the appeal or at least some of them, to reflect the fact that she has won, because she has obtained the concession that the respondents have provided by the respondent's notice and the amendment of the Particulars of Claim. Conversely, Mr Smith for the respondents says that they should have their costs of the appeal from the date of the respondent's notice, and certainly that they should not have to pay the costs of the appeal at any rate before the grant of permission. As regards the period before the grant of permission, what Mr Smith says is that the appeal was put forward at that stage on a very wide basis, and although the point about the basis of the judge's findings was there -- indeed if it had not had been, Rimer LJ for all his diligence could not have found it -- it was a needle in a haystack compared to the matters on which the appeal was bound to and did fail at the permission stage.
29. So far as the point formulated by, and on which permission was granted by, Rimer LJ, which came to the respondents first when the amended appellant's notice and the judge's order was served at the end of December 2008, Mr Smith says the whole point was conceded by the respondent's notice, and thereafter there was no need or justification for pursuing the appeal at all, let alone on the actual basis on which it appeared to be pursued, namely attacking not just the finding but the order. And he has drawn attention to the utterly disproportionate size of the appeal bundles of some 2,500 pages, of which only a small fraction are relevant to the issues on the appeal.
30. Having considered these respective allegations, and having considered the fact that, although the respondents did make the concession that they did in the respondent's notice, and offered soon after that to formulate it by way of an amendment to the pleading, which (against, it has to be said, the defendants' opposition before Henderson J) was allowed, the claimants did not make for example any Part 36 or other offer as regards the costs of the appeal, and if they had done they might have been in a better position to say that an order for costs should be made favourable to them as regards the costs from, for example, the date of the respondent's notice or 21 days thereafter. That is as may be; but they did not take that opportunity, nor did they limit their skeleton argument to arguing the point as to the pointlessness of the appeal, and for example the fact that the court would have no jurisdiction to reopen matters on which at an oral hearing permission to appeal has been refused, such as that which Mr Page sought to revive.
31. It seems to me, taking a broad brush approach, and accepting the proposition put forward by Mr Smith that Miss Sheikh and the defendants have incurred a great deal of cost, far more than was either attributable to the point on which they have succeeded to the extent that they have, or indeed proportionate to the appeal and to the limited success obtained, nevertheless the appropriate order for the court to make is one which reflects the fact that the appellants did obtain permission on a limited ground, and by no means an unimportant ground as the claimants' pleadings then stood, and have obtained - ultimately – success. I say ultimately, though Mr Smith is entitled to say they did not take very long to get from the respondents all that they reasonably expected. That also I take into account, but it seems to me in those circumstances it would be wrong and inappropriate to order Miss Sheikh to pay any costs to the respondents, and that on the other hand it would be appropriate to order the respondents to pay a modest amount to Miss Sheikh in respect of her costs.
32. Miss Sheikh has told us some figures in respect of the costs of obtaining the permission to appeal, attending the permission to appeal hearing in August of last year, some recent solicitors costs, and some large costs including well into four figures for photocopying bundles of documents. I do not regard any substantial contribution to her costs before the date of the grant of permission as appropriate. Equally, much of her costs for the recent preparation of the appeal are altogether disproportionate. In those circumstances it seems to me that the appropriate order is that the respondents should pay to the appellants a modest sum which reflects the fact that permission was obtained from Rimer LJ on 15 December last year; that the point was pursued; it was a point of importance; and that it took a little while before a concession was made by the respondents. In that respect, it seems to me the appellants were entitled to their costs. I would assess those in the sum of £2,000 and no more, and I would order that that amount be set off against sums which have been ordered to be paid the other way. Since the sum will be paid by way of set-off it is unnecessary and inappropriate even to embark on a consideration of whether circumstances might exist which would justify an order against the Respondent's solicitor personally.
33. It is an unfortunate feature of the preparation for this appeal that neither Mr Page, even at the late stage when he prepared his latest skeleton argument for the Appellant, nor Mr Smith for the Respondent, was aware of the judgment of Rimer LJ to which I have referred, in which he explained the limited scope of the permission which he granted. Mr Page did not represent the Appellants at the hearing at which Rimer LJ gave that judgment, and the Respondents were not represented at all at that hearing. When Counsel's attention was drawn to it, they were able to find it by way of the website www.bailii.org. If they had been aware of it earlier, it seems to me that the very narrow scope of the issue on the appeal would have been apparent and obvious to each of them at a much earlier stage. Whether that would have led to a less disproportionate preparation for the appeal is another matter since I understand that Miss Sheikh herself was responsible for the bundles.
34. LADY JUSTICE ARDEN: I agree with the orders that my Lord, Lord Justice Lloyd, proposes, for the reasons he has given. I am going to add some very short observations of my own.
35. This hearing has been about the costs of this appeal. It is well known that the costs of litigation in this court are a very significant burden all round, and that great care needs to be taken to ensure that the costs of an appeal are no more than necessary. A startling point, to my mind, that emerged from the course of the hearing was that neither party took the simple step of informing the Civil Appeals Office at the Court of Appeal that the sole ground on which there could be any appeal in this case had been conceded in February 2009, and thus there was no point of a full hearing of an appeal, and any question that would arise would be as to costs. This point did not come to light until my Lord, Lord Justice Lloyd, raised it on Friday in a note to counsel.
36. In that situation, what should the parties have done? Is it really to be suggested that a point like this should be left to be raised on the appeal itself? To my mind, the obligations on the parties were obvious. The parties had an obligation to cooperate with the court and with each other; that obligation was laid down in the Civil Procedure Rules. If the court had been told, and it only needed a letter, that the appeal hearing would be in effect a stay as to costs, that matter might well have led to the court of its own motion making an order that would have saved costs incurred after February 2009, both to the parties and to the public purse, of attending today. In many cases, the court makes an order for dismissal by consent on paper; in some cases, it also directs submissions as to costs of an appeal as being determined by consent to be dealt with on paper, and to be determined by a single Lord Justice. I am not suggesting that the parties should have applied to this court, but simply that this court should have been informed of the state of play on the appeal.
37. As it is, the respondents' approach of simply inviting the appellants to withdraw their appeal was not only destined to failure in the light of the parties attitude to each other, it also left the respondents in this case exposed on costs, since they made no offer to pay for any costs to compensate the appellants for the costs of the appeal, to the limited extent that the success of their appeal had been considered. Moreover, this appeal had been listed before three members of this court and has taken a half day to resolve. In addition, the respondents prepared a very long skeleton argument, most of which will not be and could never have been of any use to the court. In this day and age, we have all to bear in mind that the resources of the parties and of the court are not limitless, and that the amount spent on hearings in the court should, so far as possible, be proportionate to the matters at stake. In my judgment, both parties have failed to have regard to this principle since February 2009, and that is one matter which I have taken into account in assessing the figure for the payment of costs.
38. The issue of principle on what to do in this situation goes beyond the present case; the need to inform the court is a point which , in my judgment, should be noted by parties. For the future, it might be useful to have a note in the White Book to the effect that the parties may find that their claims to recover their costs are likely to be reduced if they fail to keep the court informed, and in the case of the conceding party to offer to pay costs of a successful party if they fail to keep that party properly informed of developments, which mean that the hearing of the appeal would not be effective.
39. With those observations, I agree with the order my Lord, Lord Justice Lloyd, has proposed.
40. SIR ANTHONY CLARKE, MR: I also agree.

Order: No order save that the Respondents pay £2,000 to the Appellants in respect of the appellants' costs of the appeal, to be set off against sums due from the Appellants to the Respondents.