Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 19 April 2021 |
| Neutral Citation | [2021] EWHC 949 (Ch) |
| Date | 19 April 2021 |
| Docket Number | Case Nos: E00YE350, F00YE085, BL-2019-BRS-000028 |
| Court | Chancery Division |
[2021] EWHC 949 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case Nos: E00YE350, F00YE085, BL-2019-BRS-000028
Heather Rogers, QC (instructed by Ashfords LLP) for the Claimants in Claim No BL-2019-000028
Mrs Nihal Brake on behalf of herself and Mr Andrew Brake in Claim No E00YE350, and herself, Mr Andrew Brake and Mr Tom D'Arcy in Claim No F00YE085
Andrew Sutcliffe QC and William Day (instructed by Stewarts LLP) for the Defendants in Claim No BL-2019-000028 and the Defendant in Claim No F00YE085, and Edwin Johnson QC and Niraj Modha (instructed by Stewarts LLP) for the Claimant in Claim No E00YE350
Hearing date: 13 April 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The following are the reasons for my several decisions, given after argument at a hearing on 13 April 2021, in these three separate claims, albeit between the same or related parties. In relation to claim BL-2019-BRS-000028 (the “documents claim”), the hearing was a continuation of the original hearing on consequential matters following the hand-down of my judgments in both the “preliminary issue” (see [2021] EWHC 670 (Ch)) and the “non-iniquity trial” (see [2021] EWHC 671 (Ch)) in that claim. In relation to claims E00YE350 (the “possession claim”) and F00YE085 (the “eviction claim”) the hearing was a continuation of the pre-trial reviews for the trials of those claims, which were respectively listed for trial from 26 April and 10 May 2021 respectively.
For reasons that I will explain, the first “instalment” of the hearing of each of these matters was in fact held before Marcus Smith J on 31 March 2021. On that occasion Marcus Smith J heard and refused an application for that hearing to be adjourned: see [2021] EWHC 828 (Ch). He then proceeded to deal with some aspects of, and give some directions in relation to, all three claims (finalised after considering written submissions from the parties), but then adjourned the rest to me, and that is what I dealt with on 13 April 2021.
In the documents claim, I had held, in the preliminary issue judgment, that the so-called “iniquity defence” was available to the defendants in relation to the claim. I also held, in the non-iniquity trial judgment, that the claim itself failed, without the need to try the “iniquity defence”. An unusual feature of this case was that, in the interval between circulating my two draft judgments (at the same time) to the parties and the formal handing down of those judgments, the claimants' counsel withdrew from the case. No explanation was given for this withdrawal, except certain comments made in a letter from the claimants' solicitors to the court dated 29 March 2021.
This said (so far as relevant):
“This morning, we have received confirmation that counsel who have been instructed on behalf of our clients (referred to for ease as ‘the Brakes’) have found it necessary to withdraw from these matters. We do not intend to waive privilege in respect of any communication or advice which would otherwise be privileged. We inform you that:
1. Ms Brown, having consulted with the Bar Council and senior colleagues, has concluded that it is her duty to withdraw. This is as a result of the Judge's conduct of the trial and the contents of the Judgment, [2021] EWHC 671 (Ch) (‘the Judgment’), which have made it impossible for Ms Brown to appear before the Judge again.
2. Mr Davies, QC, having considered his position with the benefit of advice from the Bar Council and senior colleagues, has concluded that there is a real possibility that he would be unable to fulfil his overriding duty of independence to the court, if he were to continue to represent the Brakes. Accordingly, he has withdrawn as counsel for the Brakes in relation to those matters for which he is instructed. Mr Davies, QC, having reviewed the Judgment in detail, in light of the proceedings at pre-trial hearings and at the trial, has concluded that the Brakes (in particular, Mrs Brake) are unlikely to receive a fair trial in the ongoing proceedings if presided over by the Judge. This includes the proceedings [the Eviction Proceedings], in which Mr Davies, QC was instructed and in relation to which he remains of the view that the Brakes' case has strong legal merits.
In conveying the position to us counsel have indicated the usual reasons for withdrawal such as personal conflict or funding do not apply.”
It will be seen that this letter makes generalised allegations concerning my conduct of the trial and the contents of my judgment, though without giving any particulars. It also says that it was the opinion of Mr Davies QC that the Brakes were unlikely to receive a fair trial if presided over by me. It was for this reason that, after discussion with Marcus Smith J, the supervising judge for this circuit, it was agreed that he would deal initially with the hearing of consequential matters following the judgments given on the documents claim, at the same time as the pre-trial reviews in the forthcoming trials of the two claims. As I have said, he did this on 31 March 2021, after which he passed the baton back to me.
At the hearing before me on 13 April 2021 there were a number of matters which were considered, and in relation to each of which I made and announced a decision. These were: (1) an application for permission by the Brakes to appeal in the documents claim (but limited to the non-iniquity trial), (2) various submissions on costs in the documents claim, (3) the question whether there should be directions given in relation to potential contempt proceedings against the Brakes, (4) the question whether I should deal at this hearing with an application foreshadowed to be made by the Brakes, but not yet made, for an adjournment of the two further trials, (5) an application by the Brakes for me to recuse myself in relation to the possession claim and the eviction claim, and (6) the question whether, in the event that I decided that one or other of the possession claim and the eviction claim should be adjourned, which one of the two it should be. In addition, I also gave directions for certain matters to be dealt with on paper. Here I set out the reasons for each of these decisions.
Permission to appeal
I deal first with the application for permission to appeal from my decision in the non-iniquity trial, there being no application in relation to the preliminary issue judgment. The legal test is not in any doubt. Under the Civil Procedure Rules, rule 52.6, the court (whether the lower or the appellate) may not grant permission for a first appeal unless either there is a real prospect of a successful appeal or there is some other compelling reason why an appeal should be heard. The phrase ‘real prospect’ does not require a probability of success, but merely means that the prospect of success is ‘not unreal’: Tanfern v Cameron-MacDonald [2001] 1 WLR 1311, [21], CA. If the application passes that threshold test, however, the court is not obliged to give permission to appeal; instead it has a discretion to exercise. My decision announced at the end of the argument was to refuse permission to appeal.
The Brakes had submitted draft grounds of appeal running to 13 pages, supplemented by paragraphs in the skeleton argument helpfully provided by Heather Rogers QC, as amplified by her in oral argument. Andrew Sutcliffe QC made written and oral submissions for the defendants. There were 4 grounds of appeal, which I have read in detail but summarise as follows:
1. My decision that the claimants “had no reasonable expectation of privacy in relation to any of the emails on the enquiries account was wrong in law and/or untenable on the facts”. Reliance was placed on the 5511 emails which the defendants agreed should be destroyed. Essentially, my decision was against the weight of the evidence, and also started in the wrong place. My approach to article 8 of the European Convention on Human Rights was wrong and my reliance on Simpkin was also misplaced. I treated the defendants' ownership of the domain and email account as a decisive factor against the claimants.
2. I adopted an approach to the determination of whether the claimants had a reasonable expectation of privacy on a basis that was wrong in principle and on the facts. I should have approached the question of reasonable expectation of privacy by reference to the categories of emails in the agreed list of issues. All emails which were not AEL business emails were personal emails in which the claimants had a reasonable expectation of privacy. My decision on reasonable expectation of privacy was internally inconsistent and illogical, and failed to take into account relevant evidence.
3. Similarly, my conclusions that the claimants' personal/private emails on the enquiries account lacked the necessary quality of confidence and/or that the defendants owed no duty of confidence in...
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