CHANCERY DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
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LEONARD CURTIS & Co (A Firm) | ||
Claimant | ||
- v - | ||
MICHAEL BENJAMIN | ||
Defendant |
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Suite 91 Temple Chambers,
3 - 7 Temple Avenue, London EC4Y OHP
Telephone 020 7404 7464
appeared on behalf of THE CLAIMANT
THE DEFENDANT appeared in person
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Crown Copyright ©
SIR ANDREW PARK:
Introduction and Overview
The facts in more detail
The Autopay System
"The Autopay system operates in the following way:
(1)A list of Autopay beneficiaries is prepared and from time to time updated by the bank's customer. As previously stated, these beneficiaries tend to be our regular suppliers of things like stationery. The list includes the sort code and bank account number of each of the beneficiaries.
(2)On receipt of the list of beneficiaries the bank allocates each of the beneficiaries an Autopay reference number. This Autopay reference number is thereafter used to identify the beneficiary to the bank.
(3)Every month the customer prepares a list of the beneficiaries to be paid through the Autopay system by listing their Autopay reference numbers and the sum to be paid to each of the beneficiaries on one of the bank's Autopay payment input forms.
(4)On receipt of the list of beneficiaries to be paid the bank effects payment by transferring funds into the beneficiaries' bank accounts."
"Mr Benjamin included his own Autopay reference number in the Autopay input forms that he prepared every month from April 2003 to April 2005. Having prepared these forms, Mr Benjamin would present them to a partner for his signature to authorise payment. At pages 3-4 is an example of an Autopay input form which was completed by Mr Benjamin to include his own details and authorised a payment to himself of £2,000. As previously stated, these forms did not include the names of any of the beneficiaries (merely the reference number and sum to be paid) and the partner asked to sign the form would not know who the beneficiaries of the various payments were without obtaining a separate list of Autopay beneficiaries. The partners in my firm are generally very busy people and human nature being what it is, no one ever carried out this check."
The Professional Fees Fraud
"From January 2003 onwards, in addition to obtaining payment of his professional fees in the manner described above, Mr Benjamin would regularly present the same invoice and a second cheque drawn in his favour to another partner and ask that partner to sign the cheque. As previously stated, Mr Benjamin was trusted by all the partners in the firm and Mr Benjamin obtained this trust in obtaining double the sum to which he was actually entitled."
The word "regularly" in that quotation is not quite right because over 25 months Mr Benjamin received second cheques in twelve months, not in all 25. The aggregate of the second cheques is £29,400. That is the firm's quantification of the professional fees fraud.
"My investigations into the activities of Mr Benjamin have revealed that he concealed the sums he fraudulently obtained from us as follows:
(1) in the Sage accounts by writing the amounts off as irrecoverable disbursements ...."
This reference to the amounts to being written off as "irrecoverable disbursements" was not enlarged on to any appreciable extent, but I take it to mean that the Sage accounts did show that the £78,000 in aggregate of Autopay payments and the £29,400 in aggregate of double cheque payments had been disbursed by the firm, but did not show in an immediately obvious way that they had been disbursed to Mr Benjamin.
"KDG [Mr Goodman]: Why? [Mr Goodman asked Mr Benjamin why he had done what he had]
MB [Mr Benjamin]: Fool/stupid.
....
KDG: You duplicated invoices, Autopay, cheques.
MB: Yes.
....
KDG: It is a complete breach of trust.
MB: I know. It was false accounting because I was desperate and turned to crime.
....
KDG: How big is your mortgage?
MB: £250,000. I just buried my problems, never faced up to them. I know I have breached your trust."
The Present Claim
"This was because in or around January 2003 Mr Swaden orally agreed with the defendant that, in addition to the monies to which reference is made at paragraph 2 of the Particulars of Claim and in the circumstances set out below, the claimant [the firm] would pay the defendant further monies so as to ensure that he received an approximate monthly fee of £6,000. It is admitted that the defendant received monies approximating to this amount for each month that he provided services to the claimant until he ceased providing such services."
The defence said that the payments which are alleged in this case by the firm to have been obtained fraudulently from it were made for "additional services" rendered by Mr Benjamin to the firm or its partners. The defence is rather vague about these alleged services, but the innuendo that comes through from time to time is that improper use was being made by the partners, or by one or more of them, of money held by or money passing through the firm, and that Mr Benjamin's "additional services" were services of facilitating and concealing the improprieties.
"The defendant do by 4pm on 25 September 2007 file any witness statement of fact on which he intends to rely at trial, in the absence of which he be debarred from adducing evidence of fact at trial, save that he may rely on any matters specifically set out in his defence dated 27 January 2006."
Following the Master's order Mr Benjamin served no witness statement. So his evidence before me is limited to what is contained in the pleaded Defence. Although Mr Benjamin did not attend the hearing before the Master, he has made no suggestion to me that he was not aware of it. Similarly, he has not suggested to me that he did not know about the Master's order.
Discussion and Conclusions
"It is expressly denied that the said typed note accurately reflects what was said during the meeting."
In his oral evidence Mr Benjamin said that he would not have said, and did not say, some of the things which he is recorded as having said and which I have quoted earlier in this judgment. I reject what Mr Benjamin says about that. I take as an example the very damaging record in the note of Mr Benjamin having said, "I was desperate and turned to crime". There is no reason which carries any conviction for why Mrs Mitchell should have recorded Mr Benjamin as having said that if he had not said it. The only possibilities to that effect are either that Mrs Mitchell made a mistake and erroneously recorded Mr Benjamin as having said something which he did not say, or that she knowingly fabricated a note and recorded Mr Benjamin as having said something which she well knew had not been said by him. Both of those possibilities are fanciful. I accept the note, reinforced as it was by the oral evidence of Mrs Mitchell and Mr Goodman, as a fair reflection of what Mr Benjamin said. In those circumstances I am all the more unwilling now to accept his assertion that the Autopay payments and the double cheque payments were payments which the firm knew all about at the time when they were made.
"KDG: I believe you have overcharged us.
MB: No, definitely not."
Thus, whereas at the confrontation meeting Mr Benjamin admitted the Autopay fraud and the professional fees fraud, he expressly and immediately denied overcharging.
Conclusion and Outstanding Issues
MR ADAIR: My Lord, I am very grateful. My Lord, for the purposes of the fraud trial (if I can call it that) is that. I have drafted a minute of order. Before I pass that up to your Lordship, it only remains, apart from the more detailed provisions, to ask your Lordship for an order for costs.
SIR ANDREW PARK: Yes.
MR ADAIR: The claim has been for fraud -- three separate allegations or schemes of fraud. Your Lordship has found that he was guilty of fraud in two of those respects. Your Lordship had certain concerns or realised that there was merit in the third but was not sufficiently convinced to give judgment on that --
SIR ANDREW PARK: Yes.
MR ADAIR: -- in my submission we have succeeded more than sufficiently to recover all our costs, particularly given the dishonesty that is associated with the conduct of the two frauds that your Lordship has found took place.
SIR ANDREW PARK: Yes.
MR ADAIR: And I would ask for those costs on an indemnity basis and I would ask for a payment on account of those costs.
SIR ANDREW PARK: Right.
MR ADAIR: If I pass up to your Lordship now a minute of order because I have included that, it may just assist your Lordship to see it.
SIR ANDREW PARK: All right. Yes.
MR ADAIR: The costs provision is the final provision at paragraph 7.
SIR ANDREW PARK: Does Mr Benjamin have this?
MR ADAIR: I am sorry, I will hand it to him.
SIR ANDREW PARK: The figure of £120,600 changes, does it not?
MR ADAIR: Of course, my Lord, yes.
SIR ANDREW PARK: Well, I am not going to say anything about compound interest.
MR ADAIR: I realise that as well, my Lord. I had anticipated arguing that today, but if your Lordship would prefer, there is no reason why that should not be put off to another day.
SIR ANDREW PARK: We can deal with it now perhaps. My inclination is to say that interest on the judgment sum -- the basic source for it is section 35A of the Supreme Court Act, and that provides for simple interest.
MR ADAIR: My Lord, the circumstances in which compound interest is given are generally where there has been a breach of trust and where that breach of trust has been dishonest or fraudulent and where the dishonest trustee has invested those monies in some way, shape or form to achieve a return on it, and the logic behind it which has been followed by the court was effectively by way of, albeit a personal order (a personal judgment debt), disgorge to a certain extent the trustee of the profits they have obtained. That is the logic, in my submission, behind the --
SIR ANDREW PARK: Is there anything in the White Book? I am starting with the gut instinct that there should be interest, but ordinary interest in accordance with the Supreme Court Act. If the Act is amended, as a lot of people are saying it should be to provide for compound interest, then that would be a desirable amendment.
MR ADAIR: Can I pass your Lordship an extract from Underhill?
SIR ANDREW PARK: Right.
MR ADAIR: I think what the White Book essentially says is that this is in the discretion of the court and that compound interest may be applied when the court indicates --
SIR ANDREW PARK: We will have to look together at that.
MR ADAIR: My Lord, the key paragraph where it deals with compound interest is over at page 869, and the last paragraph just above the sub-heading "Mixed Trust" -- on the right.
SIR ANDREW PARK: (Pause). Gilbert O'Sulivan.
MR ADAIR: Is the authority that is referred to there, my Lord, yes.
SIR ANDREW PARK: Yes.
MR ADAIR: There is not a great deal there but, my Lord, I can say from experience that this court has regularly, when I have obtained judgment, provided for compound interest where there has been dishonesty and where there has been a perceived requirement to disgorge profits, albeit that it is a personal judgment rather than a judgment in rem that has been given. The alternative --
SIR ANDREW PARK: Can we just have a look at the White Book to see if there is anything about this? (Pause) I have gone to "interest" in the index and looked for the word "compound" and I cannot find it.
MR ADAIR: It is not there. I am going to look very quickly at "rates".
SIR ANDREW PARK: I have gone there, too.
MR ADAIR: 12.60 does not assist, my Lord. It just refers to the judgment rate.
SIR ANDREW PARK: Would it do if I made just an order for interest under the Act, but giving you liberty to apply?
MR ADAIR: My Lord, given that your Lordship has decided that your Lordship will not formally give a personal judgment today, and that is why it has been put in the declaration, as your Lordship anticipated, if there had to be an election at some time, that election might be defeated by Mr Benjamin bowling up with the money. If your Lordship recalls the exchange we had yesterday, your Lordship indicated that the correct approach may well be to include it as a declaration so there is an entitlement, declaration 1 to judgment in relation to the principle sum. The claimant will be entitled to interest thereon and I could merely insert "at a rate to be assessed".
SIR ANDREW PARK: But where in the declaration have you put the point that you explained yesterday that there is an election between judgment for a principal sum --
MR ADAIR: My Lord, I have not put that because my submission is that it is not necessary at this stage. Since your Lordship has not formally for the purposes of this made any order against Mr Benjamin at this stage, only a declaration that there is at least an entitlement to a judgment in that sum, then no election is presently necessary.
SIR ANDREW PARK: I see, so you have put "the claimant is entitled to a judgment"?
MR ADAIR: Yes.
SIR ANDREW PARK: That does not say "there be judgment"?
MR ADAIR: No, and if your Lordship looks down at "and it is ordered that", your Lordship will find that there is no judgment included there.
SIR ANDREW PARK: Yes. Yes, I see.
MR ADAIR: My Lord, we are clearly entitled to the judgment, and if I was suddenly yanked on my gown and they said, "Look, let us forget all this. Just ask the judge for judgment and we will leave it at that", then your Lordship could give judgment today and that would be the end of it.
SIR ANDREW PARK: Yes.
MR ADAIR: But at present because we are entitled to it, we want to see what the facts are regarding the value of the property and perhaps pursue an argument that we are entitled to a beneficial interest or at least an equitable lien over it.
SIR ANDREW PARK: We got into this in connection with declaration 2 and the reference to interest.
MR ADAIR: Yes.
SIR ANDREW PARK: I wonder if we can tinker with that: "entitled to judgment in respect of the principal sum together with interest", and then put something like: "being interest in accordance with section 35A or at such other rate as the court may specify, the claimant having liberty to apply to the court for interest to be calculated at a different rate".
MR ADAIR: My Lord, yes.
SIR ANDREW PARK: Is that all right?
MR ADAIR: Yes, my Lord, yes, yes.
SIR ANDREW PARK: I do not really want to do it here and now.
MR ADAIR: No. My Lord, if we do have a subsequent hearing and we decide to apply to your Lordship on that occasion, then your Lordship will have the benefit of my skeleton on that and your Lordship will have time to think about it.
SIR ANDREW PARK: Yes. I am sure when you say your experience is that in this division it is commonly done, I am sure that that is right. I am afraid I do not personally recall encountering this particular point before.
MR ADAIR: yes.
SIR ANDREW PARK: I follow the point you are making, that there are fiduciary obligations here, but this is not a conventional case of a trustee in breach of trust.
MR ADAIR: No, it is not. It is not a conventional case of a properly appointed trustee. It is someone who inter-meddled with monies that did not belong to him.
SIR ANDREW PARK: Yes.
MR ADAIR: In fact, it is more serious than that because there is very serious dishonesty.
SIR ANDREW PARK: There is a degree of formalism in all of that.
MR ADAIR: My Lord, in due course I can put some submissions in writing to your Lordship.
SIR ANDREW PARK: Yes, if you wish. So there is something about interest in anyway, could we put "interest at the statutory rate or such other rate as may be determined, the claimant having liberty to apply"?
MR ADAIR: Yes.
SIR ANDREW PARK: For the rate of interest to be varied.
MR ADAIR: Yes, my Lord.
SIR ANDREW PARK: And 3, the entitlement to trace -- I would like to put something in to the effect "if the claimant wishes to have it determined".
MR ADAIR: "On the claimant's application"?
SIR ANDREW PARK: Yes, "if the claimant so applies".
MR ADAIR: Yes, "If the claimant so applies" after your name, my Lord?
SIR ANDREW PARK: How about putting "if the claimant so applies" right at the beginning of 3?
MR ADAIR: My Lord, yes.
SIR ANDREW PARK: So you would effectively getting judgment now for £107,600, ordinary statutory interest, but the loose ends that are left around are: if you want to come back for more interest you can do that.
MR ADAIR: yes.
SIR ANDREW PARK: But if you do not want more interest, you do not need to come back to say that section 35A interest is good enough.
MR ADAIR: yes.
SIR ANDREW PARK: The order will have that.
MR ADAIR: My Lord, we are probably going to have to come back and get the personal judgment, are we not? I cannot think of any way --
SIR ANDREW PARK: Well --
MR ADAIR: -- unless you declare that in the absence of such application there be judgment --
SIR ANDREW PARK: Yes, yes. I think that makes sense, does it not?
MR ADAIR: Yes.
SIR ANDREW PARK: That would have to go in the order, would it not?
MR ADAIR: Yes. The first paragraph could be: "In the absence of any further application by a specified date, there be judgment to the claimant in the sum of --"
SIR ANDREW PARK: Yes.
MR ADAIR: Or "upon the claimant giving notice to the defendant that he does not intend to pursue the tracing remedy, there be judgment"?
SIR ANDREW PARK: You will have to put something in about compound interest as well.
MR ADAIR: I think if we intend to go that route, then we will just have to suffice with 8% at the judgment rate.
SIR ANDREW PARK: Yes.
MR ADAIR: My Lord, shall I draft something and send it over to your Lordship to look at?
SIR ANDREW PARK: I think so, yes. And (2) permission to join Mrs Benjamin, that will arise only consequentially on you pursuing the tracing remedy. If you decide you are not going to pursue the tracing remedy --
MR ADAIR: Well, it is actually stated to be for the purpose of any application for possession and/or the sale of the property.
SIR ANDREW PARK: But as far as I can see, you would only be applying for possession -- well, first of all, let us take an application for possession.
MR ADAIR: yes.
SIR ANDREW PARK: An application for possession only get off the ground if you can trace into the property, does it not?
MR ADAIR: Yes, it does, other than if we go by way of a charging order and then seek application for possession. Other than that, there will have to be a tracing order.
SIR ANDREW PARK: Yes. I think (2) is consequential on an application for a charging order, is it not?
MR ADAIR: Yes, my Lord.
SIR ANDREW PARK: (3) stands though. You want that now.
MR ADAIR: Yes, my Lord, as does (4), my Lord.
SIR ANDREW PARK: Yes, but (4) will have to have some sort of cross-reference back to (1), that if there is going to be a further hearing before me on a date to be fixed --
MR ADAIR: My Lord, the fact that it is permission -- it is permissive -- means that if there is not going to be then it becomes irrelevant. So people will only incur the costs of doing that if it becomes relevant having looked, I would submit, at the mortgage statements and having taken a view.
SIR ANDREW PARK: I would still prefer (4) to be conditional on there being a further hearing.
MR ADAIR: Right, my Lord.
SIR ANDREW PARK: I have back-tracked from that. I was going to say consequential on there being -- to be a further hearing in which you pursue the tracing claim. However, the reason why I back-track on it is before you decide whether you want to pursue the tracing argument, you want to know what the property is going to be worth.
MR ADAIR: Absolutely.
SIR ANDREW PARK: It there is nothing in it you will not want to get involved in it.
MR ADAIR: My Lord, yes.
SIR ANDREW PARK: All right. If the point we are focusing on now -- in order to decide whether to pursue the tracing claim, you will need to form a view about what the property is worth. You do not need an order for that. You can go from this building this afternoon and instruct a valuer.
MR ADAIR: My Lord, I am in your hands. My submission to your Lordship is that granting us permission does not have to be conditional upon because the only implication is that we may go away, waste our monies and then change our mind. It is just giving permission. It is permissive.
SIR ANDREW PARK: (4) still needs to say "if there are any further proceedings in this matter --"
MR ADAIR: My Lord, yes.
SIR ANDREW PARK: "-- there be permission". The freezing orders, yes, it seems to me that they should continue. I see what you say about costs.
MR ADAIR: My Lord, there is a listing questionnaire in the bundle.
SIR ANDREW PARK: Yes, I remember seeing it.
MR ADAIR: And taking into account that which gives costs up to trial and what my solicitors instruct me are the costs of the trial, including my brief fee, etc, the rough approximation of the costs of to date are just under £50,000.
SIR ANDREW PARK: Yes.
MR ADAIR: In those circumstances, my Lord, I would seek what in my submission is a conservative 50% payment on account, and I would also seek the costs on an indemnity basis, given that this is fraud and dishonesty has been found by your Lordship, and your Lordship has also found the need to reject certain evidence that has been given by Mr Benjamin.
SIR ANDREW PARK: But you do not give indemnity costs against a defendant by just saying, "Look, I do not believe you".
MR ADAIR: No, it is the fraud, my Lord.
SIR ANDREW PARK: Well, first of all, coming to court and saying something which the judge does not believe does not give rise to indemnity costs. But if the case involves an allegation of fraud and the court finds it proved, is there some authority that that justifies indemnity costs? Indemnity costs arise from conduct in the proceedings, not just from putting up a defence which fails, even if it fails resoundingly.
MR ADAIR: My Lord, in my submission the costs are in the discretion of the court and the court uses indemnity costs to indicate its disapproval of conduct, whether it be in the proceedings or more generally.
SIR ANDREW PARK: Well, I am not sure about that.
MR ADAIR: 44.4 is the index in the White Book on indemnity costs.
SIR ANDREW PARK: I have more problem about the indemnity costs than I do over the interim payment.
MR ADAIR: My Lord, there is a note on 44.4.3 at page 1168 of volume 1 of the White Book.
SIR ANDREW PARK: Yes. (Pause) Do you see the page in the middle of page 1169?
MR ADAIR: Yes, my Lord.
SIR ANDREW PARK: That is what I had in mind. "When considering an application for the award of costs on the indemnity basis the court is concerned principally with the losing party's conduct of the case rather than the substantive merits of the position". If Mr Benjamin had been unreasonable and difficult over getting the case to court and had been the sort of litigant in person who is always multiplying costs, that might be so. Although I have found against Mr Benjamin, I cannot possibly criticise him for what he did so far as the case before me is concerned. He came, he has been very courteous. He certainly had not occupied much time.
MR ADAIR: My Lord, I hear what your Lordship is saying and it makes perfect sense. All I would say to your Lordship is that there are certain circumstances where defendants have -- the very nature of the wrongdoing -- behaved so badly that the court feels that the claimant ought to be more adequately compensated for the legal costs that they have incurred in having to bring the matter to court.
SIR ANDREW PARK: Yes.
MR ADAIR: Of course, the indemnity principle, although it reverses the burden of proof when the taxation happens --
SIR ANDREW PARK: In practice it makes quite a difference though -- or one assumes it does because of the amount of time with counsel trying to persuade a reluctant judge to make an order for indemnity costs --
MR ADAIR: As I understand it, what happens is that each cost is presumed to be reasonable unless it is proven to the contrary.
SIR ANDREW PARK: Yes, I know it says all that.
MR ADAIR: Well, my Lord, you have heard my submissions.
SIR ANDREW PARK: Yes. All right. My inclination at the moment on costs -- obviously I must hear what Mr Benjamin want to say on it, but it may help him to see that my inclination is that you are plainly entitled to an order for costs. I would be inclined to make them on the standard basis, not the indemnity basis, but I think I would order a payment on account. The only thing about payment on account -- and this comes up often and one never manages to come to a satisfactory conclusion about what one should do about it -- is that you do sometimes a party in the position of, for example -- of which Mr Benjamin is an example now -- saying, "Well, say whatever you like. Say I have got to pay so much on account. It is a waste of time because I cannot do it". What then?
MR ADAIR: My Lord, in some ways, in my submission, that is all the more reason to make it because where one has a situation where no payment is going to be made -- possibly inevitably -- and then the claimant or the winning party is put to the expense of having to go through the taxing process or the assessment process or a detailed assessment, preparing bills of costs, etc, etc, knowing at the end of the day, having incurred all those costs, they will not recover those costs, and the likelihood of recovering the costs at the end of the day are even more slight --
SIR ANDREW PARK: Ordering a payment on account does not remove the necessity for the taxing process.
MR ADAIR: It does not remove it, but at least it means that they are armed with a judgment and can look to enforce that judgment at an earlier stage.
SIR ANDREW PARK: Yes. The general principle is that when you make an order for costs you do make an order for payment on account.
MR ADAIR: Indeed, my Lord, yes.
SIR ANDREW PARK: I am not aware of any authority that says: Do not if to the knowledge of the court the party against whom the costs order is being made will not be able to afford it.
MR ADAIR: My Lord, that was going to be my next submission. The general rule is -- and it is a fairly strong rule -- that if a case is won, if there is an order for costs going to be made, then generally a payment on account ought to be made.
SIR ANDREW PARK: Yes.
MR ADAIR: But I am not aware of any principle that if --
SIR ANDREW PARK: Nor am I. The initial case about this -- which I imagine is still --
MR ADAIR: It is the Mars case.
SIR ANDREW PARK: It is the case called Mars, is it not?
MR ADAIR: Yes, it was Jacob J (as he then was).
SIR ANDREW PARK: Laddie J, I think.
MR ADAIR: Oh, was it?
SIR ANDREW PARK: I think so. Try 44.3.15. Mr Benjamin, this will be a complete mystery to you. I will not be able to do everything that you want, but you may be picking up that there are a number of things that Mr Adair is asking me to do against you, and I am being difficult and saying that I am not going to do them for him. He will get some of them. Let us have a look at Mars. I am at page 1162.
MR ADAIR: My Lord, at the bottom of page 1161 there is a note which appears to bear out the submission that I made to your Lordship: "Where resources of a party ordered to pay costs are limited, the court should not force the receiving party to engage in detailed assessment proceedings before receiving any money at all since this would merely require the expenditure of further monies on a process which will produce no return".
SIR ANDREW PARK: Ellison v Random House -- yes, he is a pretty well-known litigant in person. You know who it is?
MR ADAIR: It is the former MP?
SIR ANDREW PARK: I think he was, yes. He writes spy thriller under the name of Nigel West.
MR ADAIR: Yes, that is right.
SIR ANDREW PARK: All right. Shall I see if Mr Benjamin has anything he would like to say about these points?
MR ADAIR: Yes.
SIR ANDREW PARK: I do not know how much of that you have followed, Mr Benjamin. Basically you have lost the case. Now, we have been talking about what goes in the small print of the consequential order. If there is any chance of you just leaving Mr Adair and me to sort that out between us, I will take care that there is not something in there that is harmful to you in the respect where you have not had any chance to say anything about it. What about costs? I am sure you know the point here. If a case is brought against you -- or indeed by you in court -- and you lose, the general rule is that you have to pay the other side's legal costs. There are two different points here. One is: should you have to pay their costs? And the other is: how much? How much does not necessarily mean every penny they have spent. Do you want to say anything about whether you should be ordered to pay their costs at all? Normally you would have to.
THE DEFENDANT: No, I can understand having to pay them.
SIR ANDREW PARK: Okay. On one part of the case I did not find against you, but I am afraid I am inclined to say that you should pay -- you should pay not a fraction of their costs, but their costs to be determined. Substantially you have lost the whole case. The next question is how much. There is an elaborate mechanism for working that sort of thing out. I do not know if you have ever come across it. It involves the solicitors for the successful party preparing quite a full bill and eventually, if it is not agreed, it ends up before a Costs Judge who goes through things with a blue pencil, ticking them or sometimes striking out things altogether, saying that is too much and changing it. That used to be called "taxation", which is not a sensible term. It is now called "detailed assessment" -- a much better expression. That might happen in your case, although I suspect it will not. The usual thing is that if the court orders one person to pay the other's costs, as I think you are prepared to accept -- I am going to have to order you to pay Leonard Curtis & Co's costs -- the court will say the costs to be determined by detailed assessment if not agreed. But in the meantime, before the detailed assessment, you have to pay something on account. You perhaps heard Mr Adair say that his clients have probably incurred about £50,000 of costs already. He is not asking you to pay £50,000 on account, but would ask you to pay only half of it. The theory of that is that that leaves an ample safety margin for the process of the costs judge going through with his blue pencil. After he has finished, if they have incurred £50,000 of costs, after the blue pencil exercise they will not get the whole £50,000, but it is pretty sure that they will get more than the £25,0000 which they are asking for now.
Now, there is the problem -- you may tell me, and I would be delighted if you do -- that is no problem, you could pay £25,000. You may say, "I cannot". That is the most recent thing that Mr Adair and I were looking at together. The usual practice of the court is, where it is making an order for costs, also to make an order for an interim payment. Is there anything in the practice of the courts that says, "Ah, but we may not do that after all if we are dealing with a litigant who has not got any money"? I do not think that is the usual practice of the court. The usual practice is that the order will be made. If you do not have any money, that puts you a little bit at the mercy of Leonard Curtis & Co and their solicitors. But I do not think it would be right for a judge to say that I have to be sympathetic to the financial predicament in which the losing party finds himself, so I will let him off having the usual order for interim costs made against him. Unless you want to put reasons to me why I should not.
THE DEFENDANT: The only thing would be there's not a lot of period of time until 8 November.
SIR ANDREW PARK: How long would you like?
THE DEFENDANT: Six or eight weeks.
SIR ANDREW PARK: Four weeks is common.
MR ADAIR: In the absence of any date, it is fourteen days. I have provided for three weeks in that order. My Lord, I would certainly have no objection to a month.
SIR ANDREW PARK: Twenty-eight days?
MR ADAIR: Twenty-eight days.
SIR ANDREW PARK: Yes. I do not want to push it more than that. I will make an order that Mr Benjamin pays the claimant's costs -- and all of them -- on the standard basis, to be determined by detailed assessment if not agreed, with an interim payment of £25,000 within 28 days.
MR ADAIR: My Lord, yes, which I calculate to be 15 November.
SIR ANDREW PARK: Yes.
MR ADAIR: I am grateful. My Lord, I think that concludes everything. I had better just check with your Lordship that I fully understand the shape of the order that your Lordship wants. I have actually written down the amendments to the various declarations.
SIR ANDREW PARK: Do you want to do it an e-mail it through to Peter Smith J's clerk?
MR ADAIR: Yes.
SIR ANDREW PARK: I think Mr Benjamin will be content with this.
MR ADAIR: Yes.
SIR ANDREW PARK: If there are points, I think we can iron them out, the two of us, on the telephone.
MR ADAIR: Yes, my Lord.
SIR ANDREW PARK: That would mean, Mr Benjamin, that I might be speaking to Mr Adair about the small print of the order without you hearing what we were saying. I think you can trust us not to do anything improper.
THE DEFENDANT: Of course.
MR ADAIR: My Lord, I am grateful. My Lord, just on the housekeeping on that, it is likely that I will be out of chambers all day tomorrow.
SIR ANDREW PARK: I am here next week.
MR ADAIR: Then that is not a problem.
SIR ANDREW PARK: Yes.
MR ADAIR: I will be here on Friday as well.
SIR ANDREW PARK: I am here on Friday. If for any reason it runs over after the end of next week, I am not in court but I am at home and that is not far away. I am easily contactable.
Mr Benjamin, there is one other thing to be said. I do not know whether you would be wanting to explore the possibility of appealing against what I have decided against you? If you do, the route is that you would need permission to appeal. You can get that in two ways. You can apply to me for it, and I may or may not give it to you. If you do not apply to me, or if you apply to me and I say no, you can apply to the Court of Appeal for permission. So if you want to make an application to me for permission, you should do it now. I had better warn you that I would be very disinclined to say, "Yes, you can have permission". But I would be failing in my duty to you, you being a litigant in person, if I did not tell you this now.
THE DEFENDANT: Thank you.
SIR ANDREW PARK: Do you want to make an application?
THE DEFENDANT: No.
SIR ANDREW PARK: All right. That is very fair. I think that is everything.