Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 21 April 2021 |
| Neutral Citation | [2021] EWHC 982 (Ch) |
| Court | Chancery Division |
| Date | 21 April 2021 |
| Docket Number | Case Nos: E00YE350, F00YE085 |
[2021] EWHC 982 (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
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 Defendant in Claim No F00YE085, and Edwin Johnson QC and Niraj Modha (instructed by Stewarts LLP) for the Claimant in Claim No E00YE350
Application dealt with on paper
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.
By application notice dated 14 April 2021, Mr and Mrs Brake (“the Brakes”) apply for the adjournment of two forthcoming trials in which they are concerned, in which companies owned or controlled by Dr Geoffrey Guy appear on the other side. These trials form part of wider litigation between the Brakes on the one hand and Dr Guy and his companies on the other.
The first trial (which I shall call the possession trial) arises in a claim by Axnoller Events Ltd against the Brakes for the possession of a property known as West Axnoller Farm, which includes Axnoller House and an adjacent covered arena, and is listed for seven days from 26 April 2021; this is claim E00YE350. The second trial (which I shall call the eviction trial) arises in a claim by the Brakes and the son of Mrs Brake in respect of their allegedly unlawful eviction by the Chedington Court Estate Ltd from a property known as Axnoller Cottage, which is on the same estate as and close to Axnoller House, and is listed for five days from 10 May 2021; this is claim F00YE085.
The possession claim was issued on 19 November 2018 in the County Court at Yeovil. It was listed for trial as a fast-track claim to be heard on 17 January 2019, but was adjourned because the deputy district judge considered that the time allowed was insufficient. It was then listed for 24–28 February 2020, but was again adjourned by the district judge so that further time could be given to disclosure. In each case the adjournment was (as it happens) at the instance of the Brakes, but of course for reasons considered by the court to justify it, and in neither case on medical grounds.
The eviction claim was issued in April 2019, again in the County Court at Yeovil. The Brakes twice sought an expedited trial by application notices issued in July and September 2019, but this was not ordered on either occasion. On the other hand, in December 2019 deputy judge John Jarvis QC ordered a stay of the eviction claim, pending trial of the so-called ‘insolvency proceedings’ (meaning two large scale insolvency applications, connected with the Brakes' bankruptcy and with the liquidation of a partnership in which they had been partners).
In the wider litigation between the parties, however, there is unfortunately a history of applications for adjournments by the Brakes. For example, there were three attempts to adjourn an earlier trial in May 2020 (the section 283A or ‘revesting’ claim: [2020] EWHC 1810 (Ch)), and three earlier attempts to adjourn post-trial matters in the ‘documents’ claim ( BL-2019-BRS-000028: [2021] EWHC 671 (Ch)) since I circulated a draft judgment to the parties a month ago. One was to adjourn the formal hand-down, and was refused by me, and the other two were to adjourn the hearing of consequential matters and were refused by Marcus Smith J: [2021] EWHC 828 (Ch). But I should say that none of these applications was put on medical grounds.
In the present case, I have read the application notice, the evidence in support (witness statements from Mrs Brake, and from two of her solicitors, Ms Burcher and Mr Francis, plus letters from Mrs Brake's consultant physician, Dr David Taube), the written submissions from Mrs Brake, the written submissions in answer from the other side (whom I shall call the Guy Parties), and a further written submission in reply from Mrs Brake. It is apparent from the written submissions from the Guy Parties that, realistically, they do not oppose the application, but seek to make the grant of an adjournment conditional on certain other matters.
Partly because the non-opposition from the Guy Parties is not unconditional, and partly because there is a significant public interest in breaking any trial fixture, let alone two at once, I have thought it right to consider the matter not only as between the parties but also in the wider public interest. I say therefore at once that the conclusion to which I have come (which I communicated to the parties before preparing these reasons) is that the interests of justice require that neither of the two trials take place as listed. What should happen instead is however more difficult.
It will already be apparent that the circumstances in which the application is made are complex. Those circumstances are set out in a number of earlier judgments, including those in two trials, one concerning a claim by the Brakes under section 283A of the Insolvency Act 1986 (“the revesting claim”), and one involving a claim by the Brakes in respect of documents contained within an email account (“the documents claim”). Judgment in the revesting claim was handed down in July last year. A draft judgment in the documents claim was circulated to the parties on 19 March 2021, and formally handed down (without attendance) on 25 March 2021.
Unfortunately, between those two dates junior counsel who had appeared for the Brakes at the trial of the documents claim (and indeed the revesting claim and the insolvency proceedings) withdrew from that case, and also from the forthcoming possession trial and eviction trial. On 29 March 2021 it was confirmed that leading counsel who had been retained in each of those two trials (two different people) had also withdrawn. This left the Brakes without any retained barrister to carry out the advocacy at the two trials.
Their solicitors, however, remained on the record. I understand, however, that none of those solicitors is a solicitor advocate with rights of audience in the High Court. Those solicitors wrote a letter to the court on 29 March 2021, which said that the withdrawal of counsel was not the fault of the Brakes. I am not in a position to be able to test that proposition, but, for the purposes of considering this application, I will proceed on that basis.
A quite different question which arises is whether the Brakes would be able to fund legal fees (including those of counsel) for these two trials. I am told that the combined budgeted fees for counsel in the two trials amount to £183,000. Given the costs orders which have been made against the Brakes by Marcus Smith J and myself in the documents claim, and the evidence provided by the Brakes as to their financial position, at present I cannot see how the Brakes could possibly afford to engage counsel at that kind of budgetary level for the purposes of the two trials.
Nevertheless, the evidence of Mr Francis shows that significant attempts have been made on behalf of the Brakes to secure other counsel to represent the Brakes at the two forthcoming trials. These efforts were unfortunately unsuccessful. The lack of success has been attributed to the shortness of the time remaining before the start dates for the two trials. I accept that any competent counsel approached would have seen that as a real obstacle to accepting the instructions.
That evidence has been criticised by the Guy Parties, on the basis that (i) the number of chambers approached was limited, and did not include a number of well-known specialist chambers dealing with this kind of work, and that (ii) the approaches seemed to be confined to Queen's Counsel, rather than considering appropriately qualified junior barristers (who would be less expensive in any event). Both those criticisms seem to me to have some force, and in another case it might have mattered, but in this one, at the end of the day, I do not think that it makes a difference overall.
The fact is that the Brakes are now without professional advocacy for two complicated trials, one to last seven days and one to last five, on a fully represented basis. These would be daunting for...
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Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...to May last year, but after an application to adjourn was made to me I vacated that listing and relisted it for last September: see [2021] EWHC 982 (Ch). Because it was envisaged that the defendants would represent themselves, the first defendant Mrs Brake conducting the advocacy on behalf......
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Nihal Mohammed Kamal Brake v The Chedington Court Estate Ltd
...for May last year, but after an application to adjourn was made to me I vacated that listing and relisted it for last October: see [2021] EWHC 982 (Ch). Because it was envisaged that the claimants would represent themselves, the first claimant Mrs Brake conducting the advocacy on behalf of......
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Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...such an application was made. On 21 April 2021, I handed down a short written decision acceding to the application to adjourn: see [2021] EWHC 982 (Ch). At this stage, the Brakes continued to be represented by their solicitors, although it was contemplated that Mrs Brake herself would act ......
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Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...2021, following written submissions, I decided that those two same forthcoming trials would be adjourned and relisted in the autumn: [2021] EWHC 982 (Ch). The second point relates to the costs thrown away by those adjournments. Payment on account of costs of the Recusal Application 2 In re......