ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
HHJ PURLE QC (SITTING AS A JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
MR JUSTICE DAVID RICHARDS
| MOIRA WALSH
|- and -
|MARK BUDDHA SINGH
(AKA MARK BUDDHA and MARK WALSH)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr John Brennan(instructed by Hawkins Family Law) for the Respondent
Hearing date : 20 January 2011
Crown Copyright ©
Lady Justice Arden :
"Rule 36.14 Costs consequences following judgment
36.14 Costs consequences following judgment
(1) This rule applies where upon judgment being entered-
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; …
(2) Subject to paragraph (6), where rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to-
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court will take into account all the circumstances of the case including-
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated."
"(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including-
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply."
"27. From the very rough and ready figures that I have seen, the costs incurred down to the abandonment of the counterclaim are substantial, and at least equal to and probably exceed the costs that Mr Singh incurred after the Part 36 offer. Not all the costs incurred down to October 2008 would, of course, be referable to the abandoned counterclaim, but I am satisfied that a substantial part of them would be. As to the reformulated counterclaim which remained for determination at trial, Mr Singh was wholly unsuccessful in relation to his claim for recovery of maintenance payments or damages and would ordinarily have to pay the costs of that counterclaim (subject to the Part 36 offer). He lost also on his claim for contributions to losses and expenditure, which remained free-standing claims (not dependent on success in his defence) through most of the trial. Though successful in his defence to the claim for the Leire properties, he was unsuccessful on one quite important issue which required me to consider two different versions of events, and some documentary evidence – namely whether the £7,500 had been repaid. Neither side won as regards the Italian property. Given also Mr Singh's defeat on the issues of the engagement and ring, which took up a disproportionate amount of the hearing, and required evidence to be given from a number of sources to prove what should never have been in issue, it seems to me that were it not for the Part 36 offer, Mr Singh might have ended up paying, in respect of his defeat on the ring claim, his abandonment of the original counterclaim, his defeat on other parts of the counterclaim, and other issues upon which he lost, rather more than he would recover by way of costs in respect of his successful defence of Miss Walsh's main claims."
"28. When I add to that the disgraceful behaviour in relation to the spyware, the unjustified attempts to portray Miss Walsh as mentally unstable, and Mr Singh's general conduct of the trial as already summarised, it seems to me that it would be unjust (notwithstanding the Part 36 offer) to order Miss Walsh to pay costs and interest from the date of the Part 36 offer, even assuming, as I do for argument's sake, that they would exceed the costs which Mr Singh could have been called upon to pay down to that date. Equally, in the light of that offer, it would not be right for Mr Singh to pay any part of Miss Walsh's costs. In all the circumstances of the case, justice would be done by making no order as to costs one way or the other. That is my order, and I shall now hear counsel upon any other matters that may arise on the form of order."
"55. …there was an occasion in 2004 when Mr Singh remortgaged Vale Cottages to release capital. He discussed this with Miss Walsh and (according to her) assured her that the surplus over the existing mortgage would be out of his share. Miss Walsh claims in these proceedings (as regards any surplus) an equity of exoneration against Mr Singh's share. If of course Miss Walsh (as I find) had no share, no equity of exoneration could arise. However, the importance of the point in the present context is that, if Mr Singh raised the matter in the way related by Miss Walsh, that would have been very significant, as he clearly recognised and acknowledged her existing share. However, the point was not mentioned at all in her first witness statement as it had (she explained) slipped her mind. I find it difficult to accept that a conversation of such significance could have slipped her mind so readily, and it is equally surprising that, if the conversation was as significant as she said it was, there was no written record of it, signed by Mr Singh. In the circumstances, I do not accept that there was a significant conversation on the point, though I am prepared to accept Miss Walsh's evidence to the extent that that Mr Singh mentioned the remortgage, and got her to witness his signature."
Discussion and conclusions
Lady Justice Black:
Mr Justice David Richards: