England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/03/2017

Mr Justice Lavender:

1. I gave judgment in this case on 5 December 2016. At the parties' request, the hearing to settle any issues as to the form of my order was adjourned to 13 January 2017. At the end of that hearing, a few issues remained to be resolved. The parties have agreed most points, for which I am grateful. They made written submissions on a few outstanding issues. It is appropriate that I should give a brief judgment setting out the reasons for my decisions on those issues.

(1) Mr. & Mrs. Hope and Mr. & Mrs. Whyte: Interest

2. In paragraph 233(1)(a) of my Judgment, I said that I would give judgment for the amount which Mr. & Mrs. Hope and Mr. & Mrs. Whyte had to pay to secure title to their respective Properties.
3. In each case, an issue arises as to whether interest on that sum should run from: (a) the date when the relevant Claimants paid their English agent, CPC Worldwide Limited; or (b) the dates on which the mortgage was actually repaid or the associated fees paid. In my judgment, the latter are the appropriate dates. Before then, the money was held by the relevant Claimants' agents.

(2) Mr. & Mrs. Whyte: Quantum

4. In paragraph 134(2) of my Judgment, I said that Mr. & Mrs. Whyte paid €48,172 in repayment of the mortgage on their Property and further fees and costs associated with the cancellation of the mortgage, making a total of €51,091.37.
5. However, Sr. Aroca accepts that I should give judgment for a greater sum, namely €54,721.37. That was the figure in Mr. Whyte's witness statement of 24 September 2016 and in a pro forma invoice dated 17 June 2016 from Mr. & Mr. Whyte's Spanish lawyers, which included the amount of €51,091.37 and certain other costs. Mr. & Mrs. Whyte agree that €54,721.37 is the correct figure. (Mr. & Mrs. Whyte sought to rely on a document which had not previously been disclosed, but I do not consider that it would be appropriate to take account of this document.)

(3) Mr. & Mrs. Hope: Quantum

6. There is no such agreement in the case of Mr. & Mrs. Hope. In paragraph 134(1) of my Judgment, I said that Mr. & Mrs. Hope paid €36,000 to the relevant Bank for the cancellation of the mortgage over their Property, together with payments of €1,472.25 to Desarrollo's liquidators and €30 for a certificate which was required from the local Community. That made a total of €37,502.25. Sr. Aroca says that I should give judgment for that amount.
7. Mr. & Mrs. Hope say that I should give judgment for €43,676.41. In support of this contention, they have adduced new documents, which were not available at trial. I do not consider that it would be appropriate to take account of these documents.
8. As for the evidence which was available at trial:

(1) The figures in paragraph 134(1) of my Judgment came from an email of 6 November 2013 from Mr. & Mrs. Hope's Spanish lawyers. However, that email also indicated that there were notary fees, taxes and land registry fees still to be paid. So the figure of €37,502.25 appears to be too low.

(2) The figure of €43,676.41 was given by Mr. Hope in his witness statement dated 24 September 2016, but no documents were disclosed in support of it. He explained at trial that the difference between the two figures was made up of Spanish solicitors' fees.

(3) In cross-examination, he said that he had full invoices and that there was another email. However, these documents were not disclosed. He had given a different figure in an earlier statement, which is acknowledged to have been wrong.

(4) It appears from the email of 6 November 2013 that the figure of €43,676.41 was the amount paid by Mr. & Mrs. Hope on account to the Spanish lawyers. Mr. Hope did not say, and it was not suggested to him, that any of this amount was repaid.

9. In my judgment, it is right that I should give judgment for the amount of €43,676.41:

(1) As in the case of Mr. & Mrs. Whyte, so in the case of Mr. & Mrs. Hope, paragraph 134 of my Judgment did not include all of the fees and other sums paid by the relevant Claimants in order to secure title to their Property.

(2) On the balance of probabilities, I find that Mr. & Mrs. Hope paid €43,676.41 to their Spanish lawyers, that none of this amount was returned to them and that all of it was spent either on the items referred to in paragraph 134(1) of my Judgment or on other fees or costs necessary for securing title to their Property.

(4) Costs

10. On 13 January 2017 I decided that Sr. Aroca should pay 80% of the Claimants' costs of their claims. In the usual way, those costs included the costs of the hearing on 13 January 2017 and the costs which have been incurred since then.
11. Sr. Aroca contends that a different percentage should apply in respect of the costs incurred since 13 January 2017. He suggests 50%. He argues that this is appropriate because the Claimants have incurred costs in relation to the new documents which I have mentioned. However, late disclosure by the Claimants and late developments in their case on quantum were among the matters which I took into account in arriving at the figure of 80%. What has been seen since 13 January 2017 is another instance of the same thing.
12. One could split this action up into any number of different time periods and allocate different percentages for different periods. But that would not be a proportionate thing to do. The figure of 80% was intended as an overall, albeit rough and ready, assessment. I do not consider that it is appropriate to depart from it in respect of the costs incurred since 13 January 2017.

(5) Payment on Account of Costs

13. On 13 January 2017 I heard submissions as to the appropriate amount which Sr. Aroca should be ordered to pay on account of costs. The Claimants asked for £256,000. I ordered £240,000.
14. The Claimants now ask for this to be increased to £48,000 so as to take account of VAT. I do not consider it appropriate to reopen this issue. The potential effect of VAT was one of the issues to be taken into account by the parties in making their submissions on 13 January 2017.