England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		21/12/2015

MR JUSTICE MORGAN:

1. This judgment concerns various consequential matters which arise following the judgment which I handed down on 27 October 2015: see [2015] EWHC 3072 (Ch).
2. Each party has made written submissions as to the various consequential matters and each party has then made further written submissions, by way of reply.
3. The consequential matters which I now need to deal with are:

(1) The costs of the application of 9 October 2015;

(2) The costs of the appeal against the order of 13 January 2014;

(3) The costs of the application for a vesting order;

(4) The basis for assessment of Conwy's costs;

(5) Any payment to Conwy on account of its costs;

(6) A summary assessment of Mr Withinshaw's costs;

(7) The position at the Land Registry;

(8) Applications for permission to appeal;

(9) The time for appealing.

4. As to the costs of the application of 9 October 2015, costs should follow the event. I will order Mr Hunt to pay the costs of Mr Withinshaw and of Conwy in relation to that application.
5. As to the costs of the appeal against the order of 13 January 2014, costs should follow the event. I will order Mr Hunt to pay the costs of Mr Withinshaw and of Conwy in relation to the appeal.
6. As to the costs of the application for a vesting order, costs should follow the event. I will order Mr Hunt to pay Conwy's costs of the application for a vesting order in so far as they have not already been the subject of an order for costs. On reviewing the court bundles, I have noted one occasion on which costs were reserved. I have not been asked to deal with the costs which were reserved on that occasion.
7. As to the basis for the assessment of such costs, Conwy submits that Mr Hunt should pay its costs of the application of 9 October 2015 and of the appeal against the order of 13 January 2014 on the indemnity basis and should pay the costs of the application for a vesting order on the standard basis. As to the first two of these orders for costs, Conwy points out that I held that the application of 9 October 2015 was hopeless, totally without merit, an abuse of process and pointless and that I held that the appeal against the order of 13 January 2014 was an abuse of process. I am satisfied that Mr Hunt's conduct in relation to the application of 9 October 2015 was unreasonable to an extent which was out of the norm and I would normally regard it as appropriate to order that the costs of that application be assessed on the indemnity basis. As to the costs of the appeal against the order of 13 January 2014, I consider that it would not be right to order that the costs be assessed on the indemnity basis. I bear in mind that the underlying point which Mr Hunt wished to argue was an arguable point deserving of permission to appeal although permission was granted subject to the qualification that Mr Hunt would have to deal with arguments that it was too late for him to raise his new point. So far as Conwy is concerned, after it became a party to that appeal, Mr Hunt's conduct of the appeal was not such as to merit an award of indemnity costs.
8. I now have to stand back and decide whether I should order that Conwy's costs of the application of 9 October 2015 be assessed on the indemnity basis whereas all the rest of Conwy's costs should be assessed on the standard basis. Such an order could well cause practical difficulties. It might not be straightforward to separate out one set of costs from the others. In the end, I will err on the side of caution and order all of Conwy's costs to be assessed on the standard basis. I am the more ready to make that order because the costs of the application of 9 October 2015 are probably relatively modest, compared with the other costs, and because it is likely that Conwy will not be able to recover very much, if any, of its costs from Mr Hunt.
9. Conwy does not ask for its costs to be assessed summarily and I will order that they be the subject of a detailed assessment, if not agreed. Conwy asks for an order that Mr Hunt do make a payment on account of those costs. There is no reason in principle not to make an order for a payment on account of costs. Even though Mr Hunt may not be in a position to comply with the order, that is not a reason for not making it; indeed, it may be an additional reason for making it: see White Book, Vol. 1 at page 1432. The fact that there might be an appeal against my judgment is also not necessarily a good reason for not making an order for a payment on account of costs: see White Book, Vol. 1 at page 1434. In any event, I will indicate later in this judgment that I am not granting Mr Hunt permission to appeal against any of my orders.
10. As to the amount of the payment on account, I have not been given a summary of the costs which Conwy will claim on a detailed assessment. Conwy's counsel has submitted in writing that Conwy's costs exceed £400,000 and that it seeks a payment on account of £100,000. I consider that I ought not to make an order for a substantial payment on account in the absence of more detailed information as to Conwy's costs. I will therefore not now make the order which is sought. However, I will give Conwy permission to apply on paper for a payment on account. Any such application should be supported by a summary of the costs which will be claimed on a detailed assessment but a detailed bill of costs will not be necessary for this purpose. That application should be served on Mr Hunt and I will give Mr Hunt 14 days following such service to write to the court with any comments he wishes to make.
11. As to the basis of assessment of the costs payable to Mr Withinshaw, I do not understand him to contend that his costs should be assessed on the indemnity basis. He asks the court to carry out a summary assessment of his costs. I consider that is appropriate. I have been provided with a statement of those costs. They total £29,250.72. However, Mr Withinshaw limits his claim to costs to £26,333.62 as his solicitors have agreed with him to limit the costs to that sum. I consider that the sum of £26,333.62 represents reasonable costs reasonably incurred and proportionate to the issues involved. I will accordingly assess Mr Withinshaw's costs in the sum of £26,333.62.
12. As to the position at the Land Registry, Conwy invites me to make orders which will result in the registered title being brought into line with my judgment. In a normal case, an order from the court would not be necessary as the Land Registry would be expected to give effect to the judgment. In the present case, the consequences of my judgment for the position at the Land Registry seem reasonably clear. Nonetheless, it can do no harm and may be beneficial if the court were to make an order providing for the registered title to be brought into line with the conclusions in the judgment. After all, Mr Hunt specifically raised the question of the registered title and asked the court to determine the position when he made his application of 9 October 2015. I understand that when Conwy applied for a new title to be opened in respect of the re-grant of the freehold estate, Mr Hunt objected and his objection was referred to the Property Chamber Land Registration First-tier Tribunal. In view of that fact, I have considered whether I should leave that reference to take its course. However, neither party asked me to take that view. Ultimately, in view of the fact that Mr Hunt raised the question of the registered title for the court's decision and I have decided the position in my judgment, it is in everyone's interests and overwhelmingly convenient for me to make an order designed to bring the position at the Land Registry into line with the conclusions in my judgment and I will so order.
13. Mr Hunt has applied for permission to appeal against the various orders I am making. I do not grant permission to appeal. In so far as Mr Hunt has indicated the legal arguments he wishes to raise on appeal, I do not think that he has a real prospect of success in those respects. Mr Hunt's other intended grounds of appeal are that I was actually biased against him and I misconducted the hearing of the various matters. I do not think that there is any basis for those allegations and so I will refuse permission to appeal on those grounds also. In addition, I do not think that there is any other compelling reason for me to grant him permission to appeal.
14. A point has been raised as to whether an appeal by Mr Hunt to the Court of Appeal against my decision, dismissing his appeal against the order of 13 January 2014, would be a second appeal so that I do not have power to grant him permission to appeal: see CPR 52.13. Both Mr Withinshaw and Conwy submitted that such an appeal would be a second appeal. Mr Hunt did not make any submission to the contrary. However, it occurs to me that it might be open to Mr Hunt to argue that his proposed appeal in this respect is not a second appeal because I did not determine his appeal on the merits but, instead, I dismissed his appeal on the ground that it was an abuse of process. It might therefore be argued that his appeal against my dismissal of his appeal is not a second appeal for the purposes of CPR 52.13. In case there is anything in this point, I will assume in Mr Hunt's favour that his proposed appeal is not a second appeal so that the normal test for permission to appeal is applicable. On that assumed basis, I will in any event refuse him permission to appeal because I consider that his proposed appeal does not have a real prospect of success and there is no other compelling reason for him to be granted permission to appeal. Of course, if Mr Hunt seeks permission to appeal from the Court of Appeal in relation to this proposed appeal, then my assumption is not binding on anyone and can be examined afresh by the Court of Appeal.
15. As to the time for appealing, although my judgment was handed down on 27 October 2015, it was agreed that there would be no attendance by the parties on that occasion and I extended Mr Hunt's time for appealing until the present stage. If Mr Hunt now wishes to appeal to the Court of Appeal, I will give him the usual 21 days from today to lodge an appellant's notice with the Court of Appeal.
16. In view of the fact that Mr Hunt has indicated an intention to seek permission to appeal from the Court of Appeal, I will of my own initiative stay the effect of the order I have made as to the registered title, pending the determination of any application by Mr Hunt to the Court of Appeal for permission to appeal. I will give Conwy permission to apply for the stay to be lifted.