Case No: B2/2009/2660
Neutral Citation Number: [2011] EWCA Civ 1041
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
7CL08794
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/09/2011
Before:

LORD JUSTICE WARD
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE RIMER
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Between:

	Camertown Timber Merchants Limited
Gurpartat Singh Bhullar	
Appellants	
			
	Sabrinder Singh Sidhu
Kas & Co Limited	
Respondents	

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Mr Gabriel Buttimore (instructed by Teacher Stern LLP) for the appellant 
Mr David Holland (instructed by CKFT Solicitors) for the respondents 

Hearing date: 9th March 2011
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Judgment
LORD JUSTICE WARD: 
1.	In consolidated claims tried by His Honour Judge Collins CBE in the Central London County Court for five long, weary days, judgment was entered on 18th November 2009 for Gurpartap Singh Bhullar and Camertown Timber Merchants Ltd against Sabrinder Singh Sidhu and Kas & Co Ltd in the sum of £16,378.02 together with interest but with no order as to costs.  
2.	The flavour of this case can be sensed from the opening paragraph of the judgment of Judge Collins:
“This is a case in which the claims on one side are about £71,000, of which some £32,000 is admitted.  The claims on the other side are about £34,000.  The parties have incurred costs in litigating this dispute of about £150,000.  There are eight bundles of documents.  Counsel have spent days cross-examining the witnesses on the documents in an effort to unearth clues to puzzles which have only come into existence because of the failure of the parties, both experienced businessmen, to record their agreements in writing.  This case should have been settled at a fraction of the cost by mediation, having regard to the doubtful outcome which, as counsel agree, depends substantially upon an evaluation of the credibility of oral evidence.”
3.	The judgment which follows might be said to be quite cursory and true it is that the judge does not condescend to go into a close examination and exposition of the detailed evidence that was placed before him.  Permission to appeal was refused by Stanley Burnton L.J. on paper on the basis that the issues in the case were entirely factual but Patten L.J. was persuaded that the real challenge was “to the logicality of [the] conclusions, having regard to the findings of fact which [the judge] did make and the material which he relied upon.”  So the question fervently argued before us for a day boils down to this: where it may be thought that the judge’s patience was sorely tried did he, alas, fail adequately to try the issues laid before him? 
4.	What is this case all about?  In the red corner is the appellant, Mr Bhullar, a qualified structural engineer who over the years has been involved in residential property development.  He is the managing director of a builder’s merchant company, Camertown Timber Merchants Ltd, which I shall call “CTM”, and an associated company, Bellforce Developments Ltd (“Bellforce”).  His brother Gurmit Sidhu Bhullar (“Gurmit”) ran the timber business which also employed Mr Bhullar’s son Jagdeep.  In the blue corner is Mr Sidhu, an unqualified accountant carrying on business through Kas & Co Ltd (“Kas”).  
5.	From about 1995/1996 Kas provided accountancy and bookkeeping services to CTM and Bellforce and also to Mr Bhullar, Gurmit and other members of the family.  I have no doubt that for a long while these parties enjoyed a good personal and working relationship.  Mr Sidhu confided in Mr Bhullar his wish to find a suitable property which could be demolished and then re-built as a new family home.  Through Mr Bhullar’s dealing in the property market, he had become acquainted with Mr Eugene McCormack, a property agent, who introduced him to a property in Berkshire for a finder’s fee of £10,000.  Mr Bhullar told Mr Sidhu that this property was available and suitable for development and Mr Sidhu purchased it.  CTM supplied the materials for this building project which was carried out by workmen who were supplied by Mr Bhullar but paid direct by Mr Sidhu, there being a dispute as to whether Mr Bhullar acted as project manager or as the builder in charge.  The work began in early 2006 but problems soon arose over payment for the materials and the good working relationship between the parties evaporated.  Battle commenced and has continued with unabated vigour and ingenuity.  
6.	The first claim was brought by CTM and by Mr Bhullar against Mr Sidhu claiming respectively £40,892.53 in relation to the supply of building materials and £20,400 in respect of project management fees.  The defence to this claim alleged that the goods were supplied to Kas and that it was agreed that Kas would set off the fees owing to it for the accounting services rendered to CTM, Bellforce and the individual members of the family.  Mr Bhullar’s involvement as project manager was denied.  Kas issued its own claim against CTM for £25,215.50 for accounting fees.  In its defence CTM pleaded an agreement to set off the £10,000 finder’s fee paid by Mr Bhullar to Mr McCormack.  
7.	The judge structured his judgment in this way.  He noted that:
“The case has been presented on both sides on the basis that in the absence of any clear evidence in writing of the agreements between the parties the outcome would turn on the court’s assessment of the credibility of Mr Bhullar and Mr Sidhu in the light of the points made on the documents, especially Kas’s invoices.  The fact that their respective evidence about the oral agreements is less than clear and well particularised increases the difficulty.”
8.	He then dealt with the various claims in this order.  First, as to the project management fees, he found there was “abundant evidence” that Mr Bhullar acted as the builder in charge.  He held:
“10.  …  While it is true that Mr Bhullar’s claim in this respect was not articulated in writing until February 2007 I have no hesitation in the light of the whole of the evidence in concluding that his evidence was substantially correct.  The defendant intended him to be the builder in charge and he exercised that function until the parties ended their relationship.  I concluded that Mr Sidhu was deliberately untruthful about this; he was evasive and tricky in the witness box about this and many other issues, including issues relating to documents for which he was responsible.  In the light of this conclusion I approached the whole of the defendant’s case with great care.”
Going on to deal with remuneration he said:
“11.  The question of remuneration on a quantum meruit basis ought to be disposed of now rather than be left to another hearing and I have heard counsel’s submissions.  There were no formal arrangements, no project management records and the open market rate for project managers suggested to be in excess of £200 per day would be quite inappropriate.  The bricklayer was being paid £65 per day and the other workers were being paid startlingly low daily rates.  In the absence of daily records from Mr Bhullar or any agreement between the parties I propose to award him £100 per day for 3 days per week for the 15 weeks he was on site - a total of £4,500.  There were a number of delivery notes to the site signed by other people and his account of having been on site 10 hours a day, 6 days a week was an undoubted exaggeration.”
9.	Secondly, as to the finder’s fee, the judge noted that Mr Bhullar’s case was that it was agreed with Mr Sidhu that he would be reimbursed this finder’s fee.  But that case was not put in writing or otherwise mentioned until CTM’s defence to Kas’s claim to accountancy fees in February 2008.  He accepted the evidence of Mr McCormack that Mr Bhullar had paid him £10,000 in cash in May 2003 but, 
“what is missing is any evidence apart from that of Mr Bhullar himself that Mr Sidhu agreed to reimburse him the finder’s fee.  The fact that the claim did not see the light until February 2008 speaks volumes.  I am not satisfied there was any such agreement.”
10.	Thirdly, as to the cost of materials, the judge rejected Mr Sidhu’s complaint of a deliberate policy of overcharging him as “quite misconceived” and “completely unsubstantiated”.  He did not believe the figures in the handwritten schedules were inclusive of VAT.  He dealt with a number of disputed items and found in favour of CTM that £40,900.53 was owing.  He held:
“19.  There was no serious case put forward to justify a finding that the contract to provide materials was with Kas rather than Mr Sidhu.  The house belongs to him, not the company.  The confusion here is because Mr Sidhu drew no distinction in this area between his practice and himself.  Over a period of months a huge quantity of materials were (sic) delivered to site without any payment being made or asked for, so far as any documentary evidence is concerned, and without any threat to withhold materials and labour until payment was made.  The only sensible explanation can be that it was agreed that the cost of materials would be set off against accountancy fees due to Kas.”
11.	Finally, with regard to those accountancy fees, he found this to be “the most impenetrable part of the case.”  
“20 .  …  The claimants accused Mr Sidhu of manufacturing his invoices after the event.  The evidence that he did this is formidable.  He gave a wholly unconvincing explanation for having printed them off on outdated headed paper.  Other anomalies were clearly identified by Mr Buttimore in his closing written and oral submissions.  But the fact is that Kas did provide accountancy services and the invoices mirror very closely indeed the sums for accountancy services written in to the accounts of Camertown, Bellforce and the Bhullar family, which Mr Bhullar and family accepted and presented for tax purposes.  The question of invention of the claim, as opposed to the invoices, after the event does not seem sensibly to arise for consideration.  I do not believe that Mr Bhullar made any distinction between the fees owed in respect of Camertown on the one hand and Bellforce and the family on the other, when it came to setting off accountancy fees against the cost of materials.
21.  The disputed sums, following the summary in Mr Buttimore’s closing written submissions are: …
(ii) £9,987.50 for y/e 31 March 2005.  One defence here is the set off of the finder’s fee which I have already held fails.  Kas says this sum is for Camertown alone – Camertown and Mr Bhullar say it was for Camertown, Bellforce and the Bhullar family.  There is no direct evidence as to what the agreement was about this apart from the conflicting accounts of Mr Bhullar and Mr Sidhu.  But as the fees now claimed were written into Camertown, Bellforce and personal accounts by Mr Sidhu and then signed off and presented for fiscal purposes by the directors, and individuals, compelling evidence would be required to avoid the inference that they fully accepted them.  There is no such evidence.  Mr Bhullar gave no satisfactory explanation for these accounts being signed off and presented to the Revenue before any dispute arose.  Notwithstanding the unhappy evidence of Mr Sidhu about the way in which documents came into existence and his dubious explanations for the reason for the increase in annual fees, again before the dispute arose, that essential points stands.
iii.  Fees for y/e 31 March 2006 in the same sum where Camertown admits only £2,400 + VAT by way of quantum meruit.  I accepted Mr Sidhu’s account that fees were agreed in advance.  There was inadequate material for me to conclude that he had not done what was needed – the evidence suggests that even after a dispute arose he was seeking information for accounting purposes.”
12.	The judge concluded:
“22.  In the event Camertown succeeds in its claim for £40,900.53 and Mr Bhullar succeeds in his claim to the extent of £4,500.  Kas succeeds in its claim (including by way of set off) for the sum of £29,022.51.  The balance in favour of the claimants is £16,378.02.  I am conscious that in reaching this conclusion I have not done justice to all the evidential points made by counsel on both sides.  I found neither of the protagonists witnesses in whom I could repose great confidence and have had to evaluate the probabilities on the basis of much documentary evidence that is capable of more than one interpretation.”
There ended the judgment.
Discussion
13.	I very much doubt that this is a judgment of which HHJ Collins CBE is most proud.  It was short, even perfunctory and Delphic.  A myriad of issues, big and small, significant and insignificant, had been raised over the course of a hearing lasting five days.  He had the benefit of written opening submissions running to 10 and 24 pages long and closing submissions of 36 and 35 pages long.  References were made to the transcripts of evidence.  He was fully familiar with the detail of the case and had ample time to hear and observe the witnesses whose evidence he had to assess.  He had all the advantages of a trial judge whose task, as counsel had agreed, was to assess the credibility of those witnesses.  He found that in some respects Mr Sidhu was deliberately untruthful (see [10] of his judgment at [8] above).  He accordingly approached the whole of his case “with great care”.  But he also disbelieved Mr Bhullar’s evidence given in support of substantial parts of his case.  He was conscious that he had not “done justice to all the evidential points made by counsel on both sides” (his paragraph [22] cited at [12] above).  Having come to the conclusion that both parties were unreliable and the documentary evidence equivocal, he cannot be faulted for not condescending into great detail when giving these discreditable parties short shrift.  
14.	Mr Buttimore, counsel for the appellants, mounts a sustained challenge to the judgment, both orally and in writing.  I have read and re-read the written submissions, gone again to the documents and transcripts referred to by counsel in the oral submissions in considerable detail.  Although conscious that I too may be criticised for being perfunctory in dealing with that detail, I do not intend to rehearse every argument but concentrate on what seem to me to be the essential elements of the submissions made to us.  
Set off and the global agreement
15.	I deal with these together.  As Mr Buttimore succinctly put it in his statement of case presented to Patten L.J. on the renewal of the application for permission to appeal, the issue is not whether sums of money were due to Kas but how much and what for – how much was Kas owed for accountancy services and was it agreed to set off fees for services rendered to CTM only capped at £8,500 or the total fees due to CTM, Bellforce, Mr Bhullar and other members of the family?  
16.	As to how much, the crucial point made by Mr Buttimore was that the sums for accountancy fees invoiced by Kas did not match the sums shown in the accounts and that no reliable inferences could be drawn from the fact that “the invoices mirror very closely indeed the sums for accountancy services written into the accounts”.  The judge expressed the gravest doubts about the authenticity of the invoices (see [20] cited at [11] above), yet he found nonetheless that the fees due were as set out in those invoices.  This founded the argument advanced by Mr Buttimore that there must have been some flaw in the judge’s reasoning and approach.  Furthermore if he was preferring the invoices to the accounts then it was inconsistent of him to rely on the accounts to resolve the conflicting versions given by Mr Bhullar and Mr Sidhu.  
17.	I understand the logic of those arguments.  The problem for the appellants is, however, that Mr Buttimore’s analysis ignores the way the case developed before the judge.  The disputed invoices charged CTM £8,500 plus VAT for disputed years and the accounts gave different figures, sometimes more, sometimes less.  So it is true to say that the documents were an unreliable guide to the truth.  The flaw in this argument is that the evidence of Mr Bhullar made his case plain.  I take certain passages of his evidence from the transcript.  On day 2 at p. 41, line 26 Mr Bhullar said this:
“I ask him for a rate.  He gave me the rate.  There is no dispute about his rate.  I have not disputed what he was charging us, sir, I am not disputing what is charging us.  My dispute is that we had a global agreement for payment for Bellforce, Camertown and Bhullar family.  
Judge Collins: No, I understand.  
A.  Yes?  I am not disputing the invoicing which is £8,500 plus VAT.  It is accepted in its entirety.  Whether he rendered it to us, how he rendered it, is an element to me.  We paid and that is what we agreed, and would pay.”
At p. 42 line 17 he said:
“… but in my version is that it was myself who asked Mr Sidhu who asked for his rate; it was myself who agreed this with him in January every year, you (sic) paid him and I am not disputing now, I am not disputing the amount that you (sic) paid him.  No rates are disputed.  My dispute is that what my agreement with him was that we would pay him global fee of £8,500 plus VAT for the accounts of Camertown, Bellforce and family and we paid him that.”
18.	In the light of that evidence, I accept Mr David Holland’s (now Mr David Holland Q.C.’s) submission for the respondents that although the judge may have been entitled to find that invoices were fabricated to bolster the respondents’ cases, they were not fabricated to concoct an untrue case.  The sums claimed in the invoices were the sums that Mr Bhullar agreed to be due.  The real dispute was whether the sum of £8,500 was the proper charge for CMT, Bellforce, Mr Bhullar and other members of his family.  
19.	Mr Buttimore’s strong point here is that the respondents’ pleaded case is that the agreement was made with Gurmit but Gurmit denied this saying that it was Mr Bhullar who dealt with Mr Sidhu.  So Mr Buttimore submits that since Gurmit was believed, the judge ought logically to have rejected the respondents’ cases and should, therefore, have accepted Mr Bhullar’s evidence of the global agreement.  
20.	The judge did not deal with that point.  What impressed him was the fact that the companies and the individuals all submitted accounts to the Inland Revenue for tax purposes which showed the accountancy fees charged to them as legitimate deductible expenses.  That was totally inconsistent with there being the global agreement being asserted by Mr Bhullar.  The judge was fully entitled, in my judgment, to regard that as the salient feature of the case, far more important a question than whether the agreement was made with Mr Bhullar or Gurmit.  Given that the fees were written into the accounts, the judge was fully entitled to conclude that “compelling evidence would be required to avoid the inference that they fully accepted them.”  He was entitled to find that there was no such evidence because Mr Bhullar gave no satisfactory explanation of why those accounts were signed off by the directors and by the individuals and presented to the Revenue, especially since that was done before any dispute arose.  Thus he concluded:
“Notwithstanding the unhappy evidence of Mr Sidhu about the way in which documents came into existence and his dubious explanations for the reason for the increase in annual fees, again before the dispute arose, that essential point stands.”
That was enough to dispose of the global agreement argument.
Accountancy fees for 2006
21.	The issues that arise here are first whether there was an agreement made in advance that the fees for the year would be £8,500 and secondly when Kas ceased to carry out their accountancy services and how much had been done by then.  
22.	As to the first point the judge accepted Mr Sidhu’s account that fees were agreed in advance.  This is criticised for reasons already rehearsed above -  Mr  Buttimore relies forcefully upon the fact that Mr Sidhu’s pleaded case was that he agreed fees with Gurmit but Gurmit denied entering into any such agreement; the judge believed Gurmit; therefore no fees were agreed in advance.  As I have tried to explain, that ignores the reality of the arrangements made between these parties, the whole detail of which was explored before the judge over several days.  Mr Bhullar accepted that he was the one who agreed the question of fees with Mr Sidhu.  It was not disputed that there was an agreement in advance each year for those fees.  Given the friendly relationship that existed early in 2006 there is no reason at all to think that the 2006 fees were not agreed in line with the previous practice of the parties.  In a trial of this kind where the sand shifted all the time, it did not much matter with whom the agreement was made: the fact of an agreement was the real issue.  The judge’s finding on this is, therefore, unassailable.  
23.	The appellants’ quantum meruit argument depends upon the appellants having satisfied the judge that Kas did no more than prepare some VAT returns.  Mr Sidhu said otherwise.  He asserted that his retainer was not terminated until September when CTM refused to give him the few documents he needed to complete the preparation of the accounts, draft accounts for the year ending March 2006 having already been submitted.  There were no subtle arguments presented to the judge about formulating the claim as a claim for damages: it was a stark case of the agreed fee or a modest quantum meruit.  The judge was not persuaded that Kas had not done what was needed: on the contrary the evidence suggested that even after the dispute between the parties arose Mr Sidhu was seeking information for accounting purposes.  He was in those circumstances entitled to find in favour of Kas.  
Project management fees
24.	It should be remembered what was being claimed under this head.  Mr Bhullar was alleging that he worked on the project for an average of 10 hours per day, 6 days a week over 17 weeks and that reasonable remuneration for his project management services based on standard rates in the building industry was not less than £200 a day.  So he claimed £20,400.  This was, of course, in addition to the actual cost of the building work.  The judge rejected this claim finding that it was “an undoubted exaggeration”.  
25.	The challenge made by Mr Buttimore was, with respect to him, another nit-picking one.  The judge found that there were a number of delivery notes signed by other people and Mr Buttimore submits that giving this as the reason for the judge’s finding was unsound.  Just because someone else signed a delivery note did not mean that Mr Bhullar was not there and the finding was contrary to earlier findings the judge had made regarding the truthfulness of Gurmit and Jagdeep who did speak of Mr Bhullar being on the site.  According to Gurmit he was “spending most of his time there” (my emphasis being added) and Jagdeep said that “my father spent his working hours” on site.  Mr Bhullar was not there as a builder; he was not there as the foreman; the work was being done by workmen supplied by him.  
26.	The figure claimed for this project management is more than that paid to all the other workmen put together: £20,400 as opposed to £18,485.  Mr Bhullar kept no record of the hours he was on site.  Mr Sidhu did keep a record of the hours worked by others but made little mention of Mr Bhullar.  The claim was not advanced till late in the day.  There is implicit acknowledgement in Mr Buttimore’s own submissions that the evidence was clearly insufficient to support the pleaded case because he submits in his skeleton argument that the judge should have held he was on site 6 days a week but reduced the number of hours from 10 hours a day to 8 hours a day.  In fact in his closing submissions Mr Buttimore simply suggested that the court “needs to do the best it can to determine the number of hours worked on the material that is available.”  That is precisely what the judge did.  He did his best faced with unsatisfactory evidence.  There is no way this court can hold he was wrong to reach the conclusion he did.  It was well within his province having heard the whole of the facts of the case.
The finder’s fee
27.	The judge was satisfied that Mr Bhullar had paid Mr McCormack.  He bore in mind the argument that Mr Bhullar would not have passed on the information about the availability of this property without securing an agreement to be reimbursed for the fee he had to pay to find it but he concluded that the fact that the claim did not see the light until February 2008 “speaks volumes”.  What was missing for the judge was any evidence apart from that of Mr Bhullar himself that Mr Sidhu agreed to repay him.  This was, therefore, a clear clash of evidence between the two men.  The judge simply did not believe Mr Bhullar.  As he concluded, neither of the protagonists were witnesses in whom he could repose great confidence.  They were credible on some aspects: they were incredible on others.  It is a remarkable fact that this £10,000 claim was not brought in the first action but only raised by way of defence and set off to the later action brought by Kas.  That does require some explanation and none was forthcoming.  This is an attempt to appeal a finding of fact and it is hopeless.  
Costs
28.	The judge had circulated a copy of the judgment he intended to hand down on 18th November 2010 and counsel each submitted their written submissions on the costs orders that were to follow the handing down of that judgment.  Mr Holland was contending that the respondents should be awarded one third of their costs alternatively that there should be no order for costs.  He analysed the judge’s findings on the various topics, referred to Part 36 offers that had been made and submitted that the appellants had conducted the case in a way wholly disproportionate to the real issues and the amounts at stake.  In response Mr Buttimore contended that the appellants were the overall winners but he acknowledged that on a number of issues the appellants had lost.  He submitted however that conduct should be taken into account, in particular that “Mr Sidhu set about fabricating invoices which were never rendered”.  He even submitted that costs should be assessed on the indemnity basis essentially for the reasons stated in relation to conduct.  
29.	The judgment on costs complained about the disproportionate spending of £150,000 on legal costs to achieve an overall judgment of just over £16,000.  The judge said: 
“Mr Buttimore not surprisingly asks me to accept that in so far as his clients have ended up with a judgment in their favour I should follow the general rule that they should be regarded as the winner and have their costs.  In order to test that submission and see if it applies it is necessary to stand back ...”
So he analysed the various claims.  Kas had succeeded save as to £5,000 which “was only raised by way of amendment on the first day of the trial”.  Then he said: 
“A large amount of the time at trial was taken up with the claim for accountancy fees and the claimant mounted the strongest of attacks on Mr Sidhu’s integrity by attempting to establish the invoices and therefore the claim for fees was invented.  I dealt with that in my judgment and I accepted without making positive findings because it was unnecessary and said there were serious reasons to doubt the integrity of the invoices but for the reason I gave the claim for accountancy fees was justified on the basis the claimants had signed accounts on the basis of those accountancy fees and it is important to distinguish the forensic approach from the substance of it and in effect I found that the claimants had assented to the accountancy fees which had been claimed by signing the accounts prior to the delivery of the invoices and any order which failed to reflect the fact that the claim by Kas & Co and its defence in the Camertown action would have succeeded 100% but for the defence raised as to £5,000 on the first morning of the action would be an injustice.”
He pointed out with regard to the claim for building materials:
“It would be wrong for any order of costs not to reflect that the dispute was only for £8,000.”
As to Mr Bhullar’s claim for £10,000:
“In truth there was not a scrap of evidence that Mr Sidhu agreed to pay that money and had been raised only by way of a defence to the accountancy fees claim.”
Finally:
“The third claim for project management fees where over £20,000 was claimed, eventually ended up in a judgment for £4,500 on the basis of the judge doing the best he could with very little material showing a complete mismatch between the amount claimed and the amount recovered so although it turns out that on balance the claimant gets a judgment for £16,000 when one looks at the case to see what it was about, the defendant was a very substantial winner on his own claims and [Mr Bhullar] was a very limited winner on his own claims and where he was undoubtedly the winner of only £8,000.”
30.	In essence he concluded:
“It is clear from this judgment and my judgment that there are areas where both sides are winners and both sides are losers.”
So he concluded there should be no order for costs, each side having to pay for their own “in following and in pursuing and conducting the litigation in the way they have.”  That analysis is unassailable.
31.	The challenge to that exercise of discretion concentrates on the fact that, as submitted, Mr Sidhu had taken serious steps to attempt to subvert the trial process by amongst other things, the fabrication of documents.  The submission is that the substantive judgment appeared to make a finding to this effect, but the learned judge appears to duck the issue in the costs judgment by stating that he made no positive finding to that effect.
32.	In my judgment Mr Buttimore continues to misunderstand how the judge approached the question of fabrication of invoices.  In his main judgment he found that the evidence that he did so was formidable, that his explanation was wholly unconvincing and that there were other anomalies exposed by Mr Buttimore.  The important point of the judgment is, however, that he held that “the question of invention of the claim, as opposed to the invoices, after the event does not seems sensibly to arise for consideration.”  What the judge is saying is that the invoices were not fabricated to concoct a wholly false claim though they were concocted to bolster a good claim.  In effect Mr Sidhu was gilding the lily.  
33.	The judge addressed his mind to this question as I have set out above but he felt that not to give Kas the credit for succeeding in its claim “would be an injustice”.  He clearly took conduct into account in arriving at that conclusion.  In the end he was guided by the fact that each side had succeeded to a substantial extent, hence the relatively small amount for which judgment was given in favour of the appellants.  
34.	I have been critical of the perfunctory way in which the judge dealt with his substantive judgment.  It could have been more fully expressed and perhaps it should have been more fully expressed though for the reasons I have given the substance of it is discernable and beyond challenge.  This judgment on costs is equally short and I would have expected an express reference to conduct as the important factor the court should consider in deciding what order to make about costs.  The manner in which a party has pursued or defended his case or a particular allegation or issue is a specific matter which the judge ought to have been borne in mind pursuant to CPR 44.3(5)(c).  The factor under subparagraph (d) is whether a claimant who has succeeded in his claim in whole or in part exaggerated his claim.  Mr Sidhu gilded the lily; Mr Bhullar exaggerated his claims.  On one view of the matter each was as bad as the other and the judge had no confidence in either.  
35.	The question is whether Homer has nodded and totally failed to bear those matters in mind.  I find it impossible to accept that he fell into such a basic error.  As a former Director of Studies of the Judicial Studies Board who went about teaching judges how to do their job, it seems impossible to my mind that this venerable grandmother needed to be taught how to suck the eggs.  I am reminded (I am frequently reminded because it is an appeal from my judgment) of the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 W.L.R. 1360, 1372:
“The exigencies of daily court room life are such that reasons for judgment will always will be capable of having been better expressed.  This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the District Judge.  These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.  This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973 setting out the factors to take into account in making orders for ancillary relief].  An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself,” (with the emphasis added by me).
36.	Those remarks seem to me to apply with equal force in this case.  Every way one looks at this case one sees that both Mr Bhullar and Mr Sidhu were winners and both sides were losers.  Both were unsatisfactory witnesses.  The judge was fully entitled to say, in effect, “A plague on both your houses”.  The order for costs after a trial like this is the paradigm example of the exercise of discretion.  I cannot be satisfied that the judge misdirected himself or that in the exercise of his discretion he exceeded the generous ambit within which there is reasonable room for disagreement.  
Conclusion
37.	I am conscious that I have dealt with Mr Buttimore’s arguments more summarily than he will have hoped.  Nonetheless I am totally satisfied that this appeal should be dismissed.
Lord Justice Moore-Bick:
38.	I agree.
Lord Justice Rimer:
39.	I also agree.