Ashborder BV and Others v Green Gas Power Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEUBERGER |
| Judgment Date | 11 May 2005 |
| Neutral Citation | [2005] EWCA Civ 619 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2004/1629(A) A3/2004/1629 |
| Date | 11 May 2005 |
[2005] EWCA Civ 619
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE ETHERTON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Neuberger
A3/2004/1629(A)
A3/2004/1629(B)
A3/2004/1629
MR J GARRATT appeared in person
MR G MOSS QC (instructed by Simmons & Simmons) appeared on behalf of the Claimants
MR L TAMLYN (instructed by Salans) appeared on behalf of the Defendants
This hearing has been necessitated because Mr John Garratt has been maintaining an application for permission to appeal a decision of Etherton J in relation to proceedings brought by Ashborder BV, Cedarbase Limited and Greenpark Energy Limited ("the claimants"), represented today by Mr Gabriel Moss QC, against Green Gas Power Limited, E&P Production Limited and Cabot Energy Limited ("the defendants"), two of whom are, and have been at all material times, in provisional liquidation, and the third, E&P, were in provisional liquidation but now have been compulsorily wound up. The defendants are represented by Mr Lloyd Tamlyn.
It is, I think, unnecessary to go into the merits of the matter. The application for permission to appeal, maintained by Mr Garratt over the objection of the provisional liquidators and the claimants who contended that he had no authority to maintain it, is now sought to be withdrawn on the basis that any appeal had been compromised. In those circumstances, the first question is whether I should dismiss the application for permission to appeal or permit Mr Garratt to withdraw it. The second question is what, if anything, should be done about the costs.
The first issue does not seem to be controversial. Mr Moss, with Mr Tamlyn's tacit support, contends that I should dismiss the application so that it undoubtedly is at an end, rather than permit Mr Garratt to withdraw it. On the face of it, that seems to me to be right, without making any adverse findings about Mr Garratt's conduct, which it would be unfair to him if I were to make and I am in no position to make. It appears to me to be desirable that a quietus is put to this, and as firm and complete a quietus as possible. In any event, Mr Garratt has not submitted otherwise. It may make very little difference whether I permit it to be withdrawn or whether I dismiss it, but I think that it is only fair on the claimants and the defendants, and the provisional liquidators in particular, if I dismiss it. So the application for permission to appeal is finally dismissed.
So far as costs are concerned, both the claimants and the provisional liquidators contend that the costs of the application for permission to appeal should effectively be visited on Mr Garratt. The provisional liquidators seek £8,886.94, which they say represents their costs, and I have a schedule from 28th January. The claimants ask for £16,775, being all their costs of the application; alternatively, £11,455, their costs from 14th December; further alternatively, their costs from 28th January, £9,947.
On the face of it, the applications for costs seem to me to be well founded. Once the provisional liquidators were appointed it seems plain that Mr Garratt had no authority, and could have no authority—save if he were given it by the provisional liquidators, which he most certainly was not, and he does not suggest he was—to pursue, or even to make, the application for permission to appeal or indeed to do anything else on behalf of the defendants—see the discussion in the judgment of Moore-Bick J in Pacific & General Insurance Company Limited v Hazell [1997] BCC 400. Where a solicitor purports to act for a company in circumstances where he has no authority, then, absent special circumstances, the court will effectively routinely order the solicitor to pay any other party's costs and indeed will normally order it on an indemnity basis.
Originally Mr Garratt had instructed solicitors to act, effectively on his behalf, and purportedly on behalf of the defendants, and in particular Green Gas Power, and those solicitors, Messrs Landau Zeffertt Weir, had instructed counsel and indeed they appeared before the judge below. They withdrew on or about 21st January, having received a clear warning that an order for costs would or might be sought against them on this basis, and I have been referred to a letter from Landau's, dated 20th January 2005, which makes that clear and indeed...
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