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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Nationwide Building Society v Balmer Radmore (a firm) & Ors. [1999] EWHC 844 (Ch) (02 February 1999)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/1999/844.html
Cite as: [1999] EWHC 844 (Ch)
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CHANCERY DIVISION
B e f o r e :
____________________
| NATIONWIDE BUILDING SOCIETY |
Plaintiff |
|
| - and - |
||
| BALMER RADMORE (a firm) & Ors. |
Defendants |
____________________
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- MR. JUSTICE BLACKBURNE: I will deal with costs and I will deal with them fairly shortly. I take the view that -- there having been a direction at an earlier stage that the trial before me should be concerned with issues of liability and causation and that is what I have tried -- the costs order that I should make should reflect the outcome of that event.
- In some of the cases I have dismissed the claims and there is no argument about the order that should be made.
- So far as the other cases are concerned -- that is to say Singh & Garland Wells, Richard Grosse & Co., Archdeacons, Waters & Co., J.R. Jones, Littlestone & Cowan, Goodwin Harte, Vanderpump & Sykes and Abdullahs -- the outcome of my decision is that the Society has succeeded. My understanding of the way to approach these matters is as set out in Oksuzoglu v. Kay in the Court of Appeal to which I was referred. The Court of Appeal in that case emphasised the importance of considering what the issue was with which the court was concerned. As I say, here the questions were those of liability and causation.
- So in all of those cases, notwithstanding that questions of assessment and mitigation are yet to be dealt with, I order that the plaintiff should have its costs.
- I draw particular attention to Archdeacons and Abdullah where I found the actual damages recoverable to be relatively small. I do not consider that that conclusion ought to deter me from the order I make having regard to the issues which were before me.
- That I think leaves only the question of whether I should direct that the costs in the Goodwin Harte case should be on an indemnity basis. That case involved the conduct of a solicitor who was quite plainly dishonest. It is appropriate, in my judgment, that that fact should be reflected in the taxation of costs which is to be made. Mr. Davidson submitted that a taxation on an indemnity basis is not appropriate for two reasons: firstly, because I have in my decision in that case found that the Society's lending decision was seriously flawed and that its decision to make the loan was one which I think I described as "wholly imprudent", but where, nevertheless, because of the law as I have declared it to be, the Society is entitled to recover its loss in full. I do not regard the fact that the Society's lending decision was imprudent as a reason why, if it is otherwise appropriate, I should not order a taxation on an indemnity basis.
- The second reason advanced is that the dishonest conduct was that of Mr. Lewis. He, however, is now bankrupt, has long since ceased to be a partner in Goodwin Harte and, I daresay, has long since ceased to be in practice as a solicitor. The question of costs therefore affects his former partners. That does not seem to me to be a reason why, if otherwise indemnity costs are appropriate, I should not order them. I take the view that it is appropriate that the court's view of the conduct of Mr. Lewis should be reflected in the costs order I make. I, therefore, accede to the application that in that case the Society's costs be taxed on an indemnity basis.
- Beyond that I think the only matter I am concerned with is what I do about the managed litigation costs. It seems to me that that is a matter which should be deferred for consideration to a later date. I propose, in relation to that, to give further consideration to it when I come to give directions at some stage, I think later this term, in relation to the assessment of damages and the directions for the next stage of this managed litigation.
- One final matter remains, and that is in relation to the order for costs in the Society's favour in those cases where there is to be an assessment of costs. I will give to the defendant firms involved liberty to apply should it turn out that there has been a payment into court and that the amount of the payment is one which ought to be reflected in the ultimate costs order.
- MR. JUSTICE BLACKBURNE: This is a most unfortunate matter. Last summer I adjourned for hearing the batch four Thimbleby cases. At that time the Thimbleby cases included an action relating to a borrower called Persad. Thereafter, although there has been a certain amount of correspondence between the parties --the solicitors that is -- in relation to the Thimbleby claims the Society's solicitors have come to be under the impression that what would be tried, starting next week, would be the claims against Thimbleby & Co. relating to loans in which Mr. Shefket was involved, but not a quite separate loan in relation to Mr. Persad in which, as I understand it, Mr. Shefket was not in any shape or form involved.
- On the other hand, Browne Jacobson, who were the solicitors acting for Thimbleby & Co., say -- this is Mr. Timson -- and I accept, that it was understood that the batch four cases being listed for trial next week would include the Persad action.
- It is fair to say, looking at the correspondence, that there was remarkably little said in relation to the Persad action but I do not think that the defendants' solicitors can be blamed for that.
- The fact is, as I am told by Mr. Higginson and I accept, that the Society is not ready to proceed to trial in relation to the Persad action. They will wish, he tells me, to seek to amend their points of claim. It is also possible that witness statements will have to be, as it is put by Miss Pike in her affidavit, "revisited".
- I take the view that it would not be sensible for the Persad action to be tried next week. I say that for several reasons. First of all, the programme of events next week, as it has now taken shape, will be restricted to what is really an issue of law in relation to the Shefket claims. The Persad claim, if it were to be tried, would be, as it were, on its own.
- Secondly, I confess my own understanding was that all of the Thimbleby actions forming part of batch four were related. I am certainly aware that there was a distinction between thirteen of them and one other, but I confess I had not appreciated that the one other was of an entirely different type from the Shefket actions in that it did not involve Mr. Shefket.
- Thirdly, whilst of course the court is most reluctant to accede very late in the day to an application to take a case out of the list for trial it does seem to me that in the circumstances of this managed litigation the fact that so far as the Society's solicitors are concerned this particular action, the Persad action, which is one out of many, has been, as it were, put to one side in the belief that it would not be coming on for trial is understandable.
- It therefore seems to me somewhat unreal to suppose that if the matter does come on for trial next week it can be properly tried having regard, as I accept, to the Society's wish to apply to amend the statement of claim.
- For all of those reasons, and it is very much a matter of discretion, I take the view that the claim relating to Mr. Persad should not be tried next week, but I will -- if this is the wish and I suspect it may be -- give directions for the speedy trial of that action to come on as part of the next batch, whenever that may be.
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