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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Rolls Building Fetter Lane London EC4A 1NL
		20 September 2018

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MR JUSTICE ANDREW BAKER:

1. This is an application in respect of the disclosure provided by the defendant to this litigation. The litigation claim by the claimant is for what he says is a fee due to him and, indeed, due to him since around three years ago in respect of what he claims to have been his central and vitally successful role in resolving for the defendant an issue it had created for itself over the entitlement to Ofgem subsidy of a development referred to as the "Rolleston Project". Mr O'Neill has very fairly, if I may say so, acknowledged the broad accuracy of a summary of the issues arising provided in his skeleton argument by Mr Fox on behalf of the defendant. In particular, he has confirmed to the court, as envisaged by Mr Fox's summary, that he, Mr O'Neill, does not pursue and does not intend to pursue any alternative claim for a reasonable remuneration, what we old-fashioned lawyers sometimes used to call a quantum meruit, if he does not prove the express agreement. In his words to me just now, his case is very much that there was an agreement, he performed it, there was therefore an agreed fee due and the agreement should be honoured.
2. The claim is disputed at each of those levels. The defendant disputes that there was any such agreement. It does not say at the second level that Mr O'Neill had nothing whatever to do with, or no involvement whatever in, the resolution of the Rolleston Project issue. It does say, however - I paraphrase the gist of their case - that he had, in effect, a peripheral involvement. That generates a wry smile from Mr O'Neill because he exudes confidence that his case will be exonerated at trial but, as it is before the court today, that is the dispute on that aspect, not a suggestion by the defendant that Mr O'Neill was not involved at all, but a denial that he was the hero of the day and 'a lion' as he claims to have been described, and a positive case as to the limited nature of any input he had. There is then, thirdly, an area of dispute or potential dispute as to what has been described as the gross development value of the Rolleston Project by reference to which, on Mr O'Neill's case, what he says was the agreed fee would fall to be calculated.
3. In relation to the defendant, and in human terms that means in relation to Mr Lou and his wife, Lee Fan, Mr O'Neill does not shirk from making wide-ranging and most serious allegations as to their honesty or, as he would say, base dishonesty in a large number of respects. At best, however, for the purposes of this application in relation to disclosure, what Mr O'Neill can say is that on his case, if he were able to establish the level of dishonesty and corruption on their part which he wishes to assert, he would then wish to say to the court in due course that the failure to pay what he says is the agreed fee due to him was a next step or further instance of their dishonest conduct. That seems to me, however, as best I can judge the matter on this interlocutory application in relation to disclosure, to be if not entirely then almost entirely peripheral to the real questions in the case, namely: what was or was not agreed in May 2015; and what role did the claimant or did he not play, much of which, as far as I can see from a brief review of the pleading is itself likely to be documented in the disclosure already provided, for example as regards the degree to which he was or was not central to the involvement of Simmons & Simmons and Monica Carss-Frisk QC. So far as I can see, Mr O'Neill's allegations are of no relevance at all to questions of the gross development value of Rolleston Project as a business venture.
4. It will be a matter in due course for the trial judge in the face, in particular, no doubt, of the skeleton arguments that are provided to him or her for the trial, to judge the extent to which Mr O'Neill should appropriately be allowed to pursue lines of questioning in cross-examination as to the credit, that is honesty, of the witnesses, assuming that Mr Lou and Lee Fan will be witnesses, by reference to some of the allegations that he puts forward today, but documentation going to the credibility of witnesses is not documentation required to be disclosed.
5. In any event, I could not begin to say that an investigation into the wider allegations that Mr O'Neill makes which if I were to entertain it would be a matter that would occupy, I have no doubt, several days of court time is remotely proportionate to the issues in the case that are for trial in November. I am conscious, as Mr O'Neill emphasised at the outset of his oral address this morning, that his pressing for additional documentation, even if, as it seems to me it was, it was far more wide-ranging than could possibly have been justified or appropriate and even if it involved in purported support the wider allegations that he makes that have, it seems to me, no sensible place in this application, did, nonetheless, generate a limited amount of additional disclosable material; or at least a review of the defendant's disclosure to date provoked by the application appears to have generated some such further material. So it may be this goes more to a question of costs now than a question of the substantive disposal of the application, but Mr O'Neill can to this extent fairly say that his probing the sufficiency or completeness of the defendant's disclosure has ultimately generated some additional documentation, including, indeed, documentation he says to me today is of real importance to some of the allegations he wishes to pursue in the context of the trial.
6. That additional documentation was provided to him only, if I have got my chronology correct, earlier this week on 18 September, under cover of a detailed response to the various disclosure categories Mr O'Neill had described. To that degree, if Mr O'Neill would put it this way, his bringing of the application has generated some success, notwithstanding, it seems to me, that there is no real basis demonstrated to the court that the defendant is in the wholesale manner Mr O'Neill suggested failing to provide or in the first instance failing reasonably to search for documentation of genuine relevance under the test of standard disclosure in the case.
7. So as to its substance this application is dismissed, but I will hear what Mr Fox wants to say bearing in mind, in particular, some of the observations I have just made in relation to what I understand will be his application for costs.
LATER
8. It may be Mr O'Neill has caught me in a good mood in vacation, but I am not prepared to go the whole hog as Mr Fox would have me do and award costs of the application generally by reference inter alia to the nature and width of the application which Mr Fox with some real force submits was an unreasonable width and unreasonable nature. At the same time, it does seem to me that the fact that it was well beyond anything that any court was ever going to contemplate ordering, even if that is not to be marked by a more general order for costs, really should be reflected in the fact that upon receipt of a careful, thorough and detailed written response with a certain volume of additional disclosure material two days ago Mr O'Neill, acting reasonably, should at that point have accepted that he had achieved all that he was ever likely to achieve and his failure at the hearing today, which prima facie should generate an order for costs in favour of the defendant. Thus, the outcome of this hearing in favour of the defendant, as successful party to the application, should be reflected by an order that Mr O'Neill pay, in any event, the costs of the hearing today. Those costs are, by the standards of things in this court, extremely modest and I award them in the summarily assessed amount claimed. That is £4,320. The other costs on the defendant's side of and occasioned by the application will be costs in the case.
9. Just to explain in case Mr O'Neill is not familiar with that terminology, what that means is I am not saying that he will never have to pay the rest of the costs incurred on the defendant's side in the application. What I am saying is that the rest of the costs prior to the costs of the hearing today will turn on who wins at trial. If the defendant wins at trial and gets a costs order in its favour at trial then the rest of the costs claimed today will be part of that costs assessment but, in respect of the costs of today, which were Mr Fox's brief fee and the solicitors' attendance and travelling time, he must pay them in any event. Subject to my getting the arithmetic right, I made that £4,320, if that can be checked. A formal order will be drawn up. If I have got the arithmetic wrong, let me know and it can be reflected in the order when we draw it up.

[Note: The correct figure for costs, stated in the order drawn up by the court, was in fact £4,452.]

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