Amanda Clutterbuck and Another v A
| Jurisdiction | England & Wales |
| Judge | M H Rosen |
| Judgment Date | 15 February 2017 |
| Neutral Citation | [2017] EWHC 1127 (Ch) |
| Court | Chancery Division |
| Date | 15 February 2017 |
| Docket Number | Case No: HC-2012-000190 |
[2017] EWHC 1127 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr M H Rosen QC Sitting as a DEPUTY HIGH COURT JUDGE
Case No: HC-2012-000190
Mr Paton appeared in person.
Ms Murphy appeared on behalf of the Defendant.
M H Rosen QC:
This is my oral judgment following the hearing today of the application issued by the Claimants on 28 September 2016 for an order revoking the order of Asplin J dated 6 March 2014 requiring that they pay costs to the Defendant following the dismissal of their claims against her and the granting of limited relief on her counterclaim.
The ground relied on by the Claimants for seeking to revoke Asplin J's March 2014 costs order (according to their proposed draft order) is "conduct of the Defendant which has since been discovered".
The Claimants seek repayment of their part payment of costs and in the alternative an order varying the March 2014 costs order so as to provide for assessment on the standard rather than indemnity basis, to alter the percentages as allocated by the learned judge by way of proportions of costs and in other respects.
The Claimants also seek the discharge of a freezing injunction of 23 June 2014 and the discharge of an undertaking given to the court by Kiloran Properties Limited in March 2011, and payment of their costs of this application.
Background
This application is a further chapter in the saga of proceedings between the Claimants, Ms Clutterbuck and Mr Paton, and the Defendant, named as A. The proceedings began approximately 7 years ago, and after lengthy progress eventually reached trial before Asplin J in July 2013.
The trial concerned alleged joint ventures and other business dealings between Ms Clutterbuck and Mr Paton and A. In the course of the proceedings a number of allegations were made as regards representations made by the Defendant as to her origin and the source of such wealth, by way of monies and other assets. It was claimed that she had represented that she was Saudi Arabian and from an extremely wealthy background, that she had been married into the Saudi royal family and had fled from Saudi Arabia amidst allegations which were extremely dangerous as regards her future well-being.
The representations which she allegedly made were said to be false. It was said that she was, in fact, of humble background from Ethiopia and that she had taken on these false trappings as regards her wealth and background and current circumstances in order to deceive others, including in particular business associates such as the Claimants.
Asplin J gave a lengthy judgment on 20 February 2014 following two days of final submissions. She found against the Claimants in relation to their allegations as to joint ventures. She considered in some considerable detail a wide range of issues, including the allegations of misrepresentation and what was called "impostership" by A. It is fair to say that she regarded the main protagonists, Ms Clutterbuck, Mr Paton and A, as in every case unsatisfactory witnesses.
Having found that there were no joint ventures of the type alleged by the Claimants, she also found there were no transactions entered into in reliance on the alleged representation, for a variety of reasons. She recorded that the Claimants' counsel had conceded that the impostership allegations were intended as a backcloth and no direct relief was sought in relation to it.
She indicated what she would have found in that regard had it been necessary, which it was not; and amongst other things, she said towards the end of her judgment that if it had been necessary, she would have accepted from A that she was from or is at least connected with Saudi Arabia. This was borne out, said the judge, by her birth certificate, the evidence of a Mr Baru and to some extent the transfers received from a Saudi American bank.
The learned judge also made it plain in her consideration of the so-called impostership issues or backcloth, that the exact identity of A remains unknown and that turned to some extent on details such as the ownership of hotels in Saudi Arabia and whether or not they showed A's father was a sheik or otherwise.
The Counterclaim succeeded in some part as regards allegations of loan repayments and the like.
The costs orders
There then followed a consequential hearing, for which the parties exchanged skeletons, and which resulted in the order as regard costs of the proceedings, which the Claimants now, some three years later, seek to have revoked or varied. There is an unapproved note of Asplin J's judgment in relation to that aspect and a minute of order, which the parties are treating as the final sealed order of the court as regards the costs aspect.
This recited the judgment of 20 February and the representation by leading counsel for each side, and ordered that Ms Clutterbuck should pay 80 per cent of A's costs of the proceedings on an indemnity basis and Mr Paton should pay 75 per cent on the indemnity basis, with an assessment if not agreed, and a payment of £1 million from the Claimants together on account of those costs by 3 April 2014. There was reference in paragraph 6 to the worldwide freezing order and various other ancillary matters then follow.
The Defendant through Mr James, a solicitor, says that her costs were in the order of £2 million, some small part of which, something over 10 per cent, had already been assessed.
As regards the payment on account, that it appears was not paid until bankruptcy proceedings which included a judgment of Registrar Derrett on 20 October 2016. The Defendant has sought to put that judgment in evidence before me insofar as it comments on the likelihood of success of the present application. Without ruling on its admissibility or otherwise, I note that the Claimants objected to its being relied on before me, and since I did not consider it necessary to read that judgment, I have not done so and do not refer to it further.
The final matter which I ought to mention briefly as regards background is the Claimants' unsuccessful attempt to obtain permission to appeal, both refused by Asplin J and the Court of Appeal, who refused an application to put in further evidence.
The present application
For the hearing before me the Claimants served a skeleton argument and put in something like 900 pages of documents, including various witness statements, which are said to prove to a very high standard that the Defendant's evidence as regards her identity, origin, sources of wealth and personal circumstances relevant to the dealings between them, and relevant, therefore, to the judge's consideration of the facts and the credibility of the various parties and witnesses, have been fundamentally misstated.
In the course of the Claimants' skeleton and the oral submissions made by the Second Defendant, Mr Paton, various elements of that principal submission were emphasised and repeated, and I was told about a number of related contentions. These include (a) an attempted private prosecution of the Defendant; (b) the falsity of a birth certificate that she produced and was referred to by Asplin J; (c) the giving of false evidence by A and a number of other witnesses; (d) allegations of perjury which are said to be under investigation by the police; and (e) questions as to the conduct of proceedings on her behalf, if indeed she was not the person with the background and the circumstances which she alleged.
It is said by the Claimants in those circumstances that this is a case in which they do not need to challenge the judgment of Asplin J on the merits dismissing their claim and granting judgment for part of the counterclaim, but that the court was very seriously and fundamentally misled on matters relevant to the costs order that was finally made after the trial.
The Claimants therefore invite the court now to review that and to seek to reconsider what costs order, if any, would have been appropriate had, as they put it, the true facts been stated rather than the false facts which in uncorrected form continued to be deployed before the learned judge in 2013 and 2014.
CPR 3.1 (7)
The Claimants' application in that regard is made under CPR 3.1(7). The guidance which is given as to the scope and application of that power is dealt with in a number of authorities, including the case of Tibbles v SIG [2012] 1 WLR at 2591, in particular in the judgment of Rix LJ at paragraph 39.
The rule itself is under the heading "The court's general powers of management" and is part of Rule 3.1, which begins:
(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
There is then in sub-rule (2) a list of powers which could be broadly described as procedural or management powers, and sub-rule (7) provides that:
A power of the court under these Rules to make an order includes a power to vary or revoke the order.
Note that the phrases " A power of the court under these Rules", is not necessarily limited to the list of specific powers in 3.1(1).
The conclusions drawn by Rix LJ in the Tibbles case, to which I have referred, contains seven sub-paragraphs. In the first it is said that:
Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there is in all...
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