Anthony Douglas King v Barry Stiefel
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 02 March 2023 |
| Neutral Citation | [2023] EWHC 453 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2020-000066 |
and
[2023] EWHC 453 (Comm)
Mr Justice Jacobs
Case No: CL-2020-000066
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Catherine Addy KC and Joseph Sullivan (instructed by Macfarlanes LLP) for the 1 st to 4 th Applicants
Daniel Lightman KC (instructed by Kennedys LLP) for the 5 th to 9 th Applicants
John Taylor KC and Nathalie Koh (instructed by Womble Bond Dickinson (UK) LLP) for the 1 st Respondent
William Flenley KC and Richard Sage (instructed by Beale & Co LLP) for the 2 nd Respondent
Hearing dates: 7 th and 8 th December 2023
Approved Judgment
This judgment was handed down remotely at 9:00 am on Thursday 2 nd March by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
INDEX
| Section | Para Number |
| A: Introduction | 1 |
| B: Factual and procedural background | 8 |
| C: The judgment of Cockerill J | 34 |
| D: The grounds of the wasted costs applications | 56 |
| E: Legal principles in relation to wasted costs applications | 68 |
| F: Threshold issue – suitability for summary determination? | 95 |
| G: The merits of the application and the individual grounds | 135 |
| G1: Introduction | 135 |
| G2: No pleaded of pleadable cause of action – the costs conspiracy | 143 |
| G3: The costs abuse ground | 163 |
| G4: CPR 38.7/abuse of process | 164 |
| G5: The threat case | 171 |
| G6: Failure by Metis Law to comply with the pre-action protocol | 182 |
| G7: The case generally against Metis Law | 185 |
| Conclusion | 186 |
A: Introduction
On 26 April 2021, Cockerill J handed down a 93-page judgment, with 489 paragraphs, following a 6-day hearing of an application by 10 defendants for reverse summary judgment or to strike out proceedings for unlawful means conspiracy which had been commenced by Anthony King and his parents, James and Susan King, (together, “the Kings”). The claim in those proceedings was CL-2020-000066, and Cockerill J's judgment is [2021] EWHC 1045 (Comm). The defendants' reverse summary judgment/ strike out application was successful. At a “consequentials” hearing on 27 May 2021, Cockerill J certified that “the Claim is totally without merit”. The “Claim” referred to the Claim Form issued by the Kings on 5 February 2020, and the Particulars of Claim dated 19 March 2020 in the action for unlawful means conspiracy. I shall similarly use the expression “Claim”.
Cockerill J refused an application for permission to appeal, and the Kings sought permission to appeal from the Court of Appeal. This was dismissed on paper by Males LJ in trenchant terms on 20 June 2021. In paragraph 1 of his reasons, Males LJ said:
“The judge demonstrated, in a conspicuously detailed and patient judgment, that this claim is thoroughly misconceived. She dealt at length with all of the matters which the applicants now seek to raise in their grounds of appeal. For the most part, the applicants simply fail to engage with her reasoning, which is entirely convincing. I have reached the firm conclusion that an appeal would have no real prospect of success. It is unnecessary in these circumstances to say much about each of the applicants' individual grounds. The applicants are or should be well aware of where their claim has been struck out and why an appeal would not succeed. The have merely to read the judgment.”
Prior to the dismissal of the application for permission to appeal, 9 of the 10 defendants to the Claim sought to invoke the court's jurisdiction to make a wasted costs order against the barrister and solicitors who had represented the Kings in the proceedings including the 6-day hearing. There were two groups of defendants who made that application. The first group comprised the 1 st – 4 th Defendants to the Claim, namely Barry Stiefel, Robin Fisher, Peter Swain and Primekings Holding Ltd (“the Primekings Parties”). They are now the 1 st – 4 th applicants in the proposed wasted costs proceedings. The second group of defendants comprised the 5 th – 8 th and 10 th defendants to the Claim. One of the defendants in the second group was the solicitors firm Teacher Stern LLP, and the remaining defendants were partners in or otherwise associated with that firm. I shall refer to them as the TS Parties. There was one further defendant to the Claim, namely Paul Downes KC, but no wasted costs application has been made by him. I shall refer to the Primekings parties and the TS Parties collectively as “the Applicants”.
The court's wasted costs jurisdiction has been discussed in numerous cases, and CPR Practice Direction 46, paragraph 46 PD.5, sets out the basic approach:
“5.5 It is appropriate for the court to make a wasted costs order against a legal representative, only if –
(a) the legal representative has acted improperly, unreasonably or negligently;
(b) the legal representative's conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted;
(c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs.
5.6 The court will give directions about the procedure to be followed in each case in order to ensure that the issues are dealt with in a way which is fair and simple and summary as the circumstances permit.
5.7 As a general rule the court will consider whether to make a wasted costs order in two stages –
(a) at the first stage the court must be satisfied –
(i) that is has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and
(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved;
(b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above.”
Applications for wasted costs will therefore generally proceed in two stages where the questions in paragraph 5.7 (a) and (b) need to be considered. This judgment follows a lengthy Stage 1 hearing, which occupied the best part of 2 days. I heard oral submissions from Ms Addy KC for the Primekings Parties and Mr Lightman KC for the TS Parties. Both submitted that this was an appropriate case for the matter to proceed to a “Stage 2” hearing.
The applications were opposed by Mr Taylor KC on behalf of Mr Christopher Newman and Mr Flenley KC on behalf of Metis Law. Mr Newman and Metis Law were, respectively, counsel and solicitors for the Kings in the struck-out Claim. I shall refer to them collectively as “the Respondents”.
The issue is therefore whether the wasted costs applications should proceed to Stage 2.
B: Factual and procedural background
There is a complex and extensive litigation backdrop to the present application. The events and litigation prior to February 2021 are fully described in Cockerill J's judgment. The parties also referred to aspects of the litigation subsequent to Cockerill J's judgment, including a decision of the Court of Appeal in one of the ongoing pieces of litigation between the Kings and some or all of the Primekings Parties: Re King's Solutions Group Ltd [2022] EWCA Civ 1943, on appeal from [2020] EWHC 2861 (Ch) (Tom Leech QC (as he then was)). Although it will be necessary to refer to some aspects of the litigation background, it is not necessary to describe it in detail, since it can be found in Cockerill J's judgment. The following summary is sufficient for present purposes. (In this judgment, bracketed numbers refer to paragraphs of Cockerill J's judgment, except where the context otherwise requires, e.g. because I am referring to the paragraph of a legal authority discussed in the judgment.)
The Claim was but one element of a widescale litigation which originated with a claim in fraudulent misrepresentation brought by the Kings against three of the Primekings Parties (“the Misrepresentation Claim”). Although one of the present Primekings Parties, Mr Stiefel, was not a defendant to the Misrepresentation Claim, this is not of central importance in the context of the present application. It is therefore convenient, unless the context otherwise requires, simply to refer to the “Primekings Parties” in this judgment, whether I am referring to the three Primekings parties who were defendants to the Misrepresentation Claim or the four Primekings who were defendants to the Claim.
The Primekings Parties were represented in the Misrepresentation Claim by Teacher Stern LLP and Mr Downes KC. On 15 May 2015, the Kings discontinued the Misrepresentation Claim on the tenth day of trial before Marcus Smith J, and publicly apologised in open court to the defendants and consented to pay costs on the indemnity basis (“the Discontinuance”). The Kings were ordered to pay £1,700,000 on account of costs. (See [86] – [93].)
The Discontinuance led to four further sets of proceedings, described in [94] – [133]. Aspects of these proceedings featured in the argument before Cockerill J and before me.
One of those proceedings concerned the recovery of costs incurred by the Primekings Parties in relation to the...
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