England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE COWELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd April 2012

Lord Justice Aikens:

1. I asked that there be a hearing today to tell you what my proposal is for dealing with the situation that we have arrived in and for hearing any submissions that either party wishes to make on it.
2. Mr Mark Maguire, you had got your leave to appeal from Moses LJ and then, as I think you fully accept, there were a whole series of meetings between what was then your barrister and Mr Powell's predecessor, Mr D'Amici, and you will remember, Mr Mark Maguire, that your then counsel and Mr D'Amici signed a so-called minute of order, as it was called, the effect of which was set out in a schedule to it and that was to the effect that Ricky Maguire would pay to you £10,000, and there were further terms of the agreement but the most important one for present purposes was that it said the terms in this schedule are agreed in full and final settlement of all claims and counterclaims in these proceedings, all claims and counterclaims related to the property, the acquisition of the property, its occupational use, any claims between the appellant and the respondent that exist on the date hereof howsoever the same arises -- slightly flowery language but effectively it means it is meant to settle everything, at least that is what it looks like.
3. We know that the court was a bit concerned about the form of that order and there was correspondence between the lawyers and the court, in particular the barrister acting for you at the time, Michelle Stevens-Hoare, and an attempt was made to produce another form of order and the court did not like that form of order either and then there was an attempt to produce another form of order, a third form of order, and that was around about Christmastime and you then took the view that you were not prepared to agree to it and you wanted the appeal to ahead, and that, as I understand it from the latest email that was received by the court late yesterday afternoon and I saw this morning, remains your position.
4. Now, the difficulty, Mr Mark Maguire, is that if, as advisors for Ricky Maguire say, the first agreement constitutes a contract of settlement then there cannot be any question of appeal because it has all disappeared in a puff of smoke, in effect, and I should have added because the cheque was paid to you as agreed and you cashed it. All that part of the order is done. I appreciate that you say, well, you were misled, you were rushed into this, you did not really want to agree to it et cetera, and effectively what you are saying is you want somehow to undo things and go back to square one so that the appeal can be heard.
5. Mr Maguire, let me explain what I propose now, because if Mr Ricky Maguire and his advisors are correct then there cannot be an appeal. That is it. It has stopped. But you challenge that, in effect, for the reasons you have just summarised. Now, because this is a court of appeal, this court cannot decide that matter itself because we deal with appeals, we do not deal with disputes at the first stage. The courts that deal with them at the first stage are the county courts and judges like Judge Cowell. Now, there is a procedure that is available whereby if there is an appeal pending then the Court of Appeal has power – and, Mr Powell, it is under Part 52.10(2) of the CPR, and I will read it out for you, Mr Maguire:

"(2) The appeal court has power to –

[...]

(b) refer any claim or issue for determination by the lower court"

6. Subject to the views of yourself or Mr Powell, it seems to me that what I should do in the present circumstances is say that this should go back to the county court. And if you want to pursue the argument which you have just summarised for me, because it attacks the basis on which there was an agreement and so is relevant to whether the appeal can go ahead or not, then it should be resolved in the county court before the county court judge. It does not have to be the same judge. If it is thought that it would be a good thing because he knows the background then why not, but that is for the county court to sort out. I do not think I should direct it. So that would be my proposal.
7. So, as it were, we have parked the question of whether there can be an appeal or not until the question of whether or not there is a binding contract of compromise and what it means – does it include the costs, for instance, or not, or is there still an outstanding issue as to costs, because that seems to be an issue – all that will be decided by the county court judge. Then obviously if he decides, yes, there was a contract of compromise, it did include the costs, then that is it: finished. If he says no or you could undo it or whatever, then we will see where we go from there. That is the proposal, subject, as I say, to comments from both sides.
8. I will explain in a moment to Mr Maguire if we are going down that route that there is a potential costs consequence, as it were, to both sides, but I cannot see any other way out of this impasse. And the other alternative is an even less attractive one, which is that either Mr Mark Maguire or your client, Mr Powell, starts another action. In your case it would be for a declaration et cetera; in his case it would be for a declaration setting it aside, I suppose, or a recision order. So I am not sure that that is any more attractive.
9. I should emphasise this may have costs consequences which may end up at your door, Mr Maguire. Unfortunately litigation is not a cheap business, as you have probably found out already, and there we are. It is most unfortunate that what was effectively a family dispute should involve a lot of costs, but I am sure you have been told by your lawyers and I am sure Mr Powell and his predecessor told his client that perhaps you ought to try and sort it out, have some kind of mediation or intervention by a third party who can be independent et cetera. If that has not been suggested then I would urge you now, even now at this stage, to think about that. You would save yourselves money. No one really should be coming to the courts it they can avoid it, and if you can sort it out by some kind of third party helping to mediate between you then that is by far the best way. You involve the hassle and stress of court. You involve the possibility of further expenses. But I can only suggest it in as strong terms as I can. I cannot make you do it, I cannot make Mr Ricky Maguire do it either, but I would hope that you would both think about it very, very carefully before you go down the next road, as it were. And that is to both sides.
10. What is the form of order that should be made? We need to have an order of this court which sends it back. First of all, should we say that, pursuant to CPR Part 52.10(2B), it is ordered that the issue of whether or not there is a binding contract of compromise between Mr Mark Maguire and Mr Ricky Vincent Maguire as evidenced by the minute of order dated 31 October 2011 is a binding contract of compromise, and (2) if so, what are its terms, in particular, does it include a compromise on the issue of costs of the litigation leading to the order of HHJ Cowell of 28 May 2010?
11. The second order is that the current appeal (B2/2010/2065) be stayed in the meantime, and I would say as far as today is concerned that the costs of today be costs in the issue for determination by the lower court, the Central London Civil Justice Centre. Is there anything else we need to cover in the order?
12. If you are both agreed then I think, probably on behalf of both parties, those acting on behalf of Mr Ricky Vincent Maguire should write a letter to the Central London Civil Justice Centre saying that you both would like HHJ Cowell to deal with the matter if at all possible and that Aikens LJ agreed that that would be a sensible proposal. You have my approval, and that might help. I am not saying it will because of course there may be other difficulties that mean HHJ Cowell cannot do it, but at least there is a sporting chance.
13. Now Mr Powell, what I would like you to do is to tidy up that order, because it is perhaps a little difficult for the associate to get it all down, make sure it is agreed with Mr Maguire and then show the order to the associate who will then produce something for me to sign.

Order: Remitted to County Court