Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] EWHC 1500 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: E00YE350, F00YE085 |
| Date | 04 June 2021 |
[2021] EWHC 1500 (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
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law LLP) for the Guy parties
Ashfords LLP for the Brakes
Decision on written submissions, without a hearing
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
This further short written judgment follows that which I handed down on 17 May 2021, available under neutral citation [2021] EWHC 1282 (Ch). It deals with a final point arising out of post-trial proceedings in Brake v Guy [2021] EWHC 671 (Ch) (the “Documents Claim”), in which I handed down judgment on 25 March 2021. On 13 April 2021 I refused an application by the Brakes and Mr Tom D'Arcy (together hereafter “the Brakes” for convenience) for me to recuse myself from presiding over two trials in further litigation between (in substance) the same parties. My written reasons for that decision are available under neutral citation [2021] EWHC 949 (Ch). The outstanding point relates to the costs of that recusal application.
In relation to that, I decided on 2 May 2021 that the Brakes should pay the Guy parties' costs of the recusal application on the indemnity basis, to be the subject of detailed assessment if not agreed. I did not then have a costs schedule, and so I was not then in a position to decide about ordering a payment on account, as provided for by CPR rule 44.2(8). A costs schedule was subsequently sent to the court and to the Brakes. It showed a total of costs claimed in the sum of £21,988.50. But there was some confusion (at least on my part) as to what submissions were being made on each side. That confusion has now been resolved. I have received written submissions from both sides on the question whether a payment on account should be ordered, and if so in what amount. This judgment deals with those questions.
However, I should make clear that, after I had circulated this judgment in what I thought would be final form to the parties (but before it was published on BAILII), Mrs Brake sent me an email saying that she had been unable to contact her solicitor and so wished to raise directly with me a further issue which had not previously been the subject of submissions. Rather than have this dealt with as a ground of appeal from my decision, I considered that the better course was to deal with the matter in this judgment, after inviting submissions from the Guy parties. That is what I have done, and reference is made to it at the appropriate point.
The law
First of all, CPR rule 44.2(8), provides that:
“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”.
Secondly, in Culliford v Thorpe [2018] EWHC 2532 (Ch), I held that an application could be made for an interim payment on account even after the formal order had been drawn up and entered.
Thirdly, in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), Christopher Clarke LJ said:
“22. It is clear that the question, at any rate now, is what is a ‘reasonable sum on account of costs’…
23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad.”
The costs claimed
The sum of £21,988.50 claimed in the costs statement breaks down as follows. So far as the solicitors are concerned, there were a small number of attendances on counsel and a small amount of work done on documents. In addition, both the partner (grade A) and an associate (grade B) attended at the hearing of the recusal application. A small amount of costs were incurred in the preparation of the statement of costs itself. The total of the costs for the solicitors is £4,113.50.
Unusually, two teams of counsel were engaged in this application, because one team had conducted the trial of the documents claim and would conduct one of the trials in relation to which the recusal application was made, and the other team would conduct the other trial. Mr Sutcliffe QC, dealt with the advocacy at the hearing had a single fee for preparation and attendance of £10,000. His junior, Mr Day had a fee for preparation and attendance of £3,500. The other counsel team had much less to do, and incurred proportionately lower fees, totalling £4,375. The total for counsel is therefore £17,875.
Adding together figures for solicitors and counsel, that makes the grand total of £21,988.50, which will go for detailed assessment. The Guy parties now seek a payment on account in the sum of £17,500, that is, approximately 80% of the total of the costs claimed. They rely on my own decision in Brake v Lowes [2020] EWHC 1324 (Ch), [33]–[34], where I referred to and applied the decision of Christopher Clarke LJ in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), [22]–[23] (set out above).
The Brakes' submissions
Mental Health Crisis Moratorium
The Brakes resist this application on a number of bases. The first is that it appears that on 6 May 2021 Mr Andrew Brake, the second defendant, entered what was described in an email of 7 May 2021 addressed to Mrs Alo Brake, the first defendant, as “Mental Health Breathing Space”. This appears to be a reference to the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium)(England and Wales) Regulations 2020 (“the regulations”), made under the Financial Guidance and Claims Act 2018.
However, I have not been able to find in the regulations any such concept as “Mental Health Breathing Space”. The regulations provide for two types of moratorium available for debtors, the Breathing Space Moratorium and the Mental Health Crisis Moratorium. In the circumstances, and especially the reference to mental health, I assume, and proceed on the basis that, that Mr Brake is now subject to the latter, under Part 3 of the regulations, rather than the former, under Part 2.
The Brakes submit that the effect of this under the regulations is that the Guy parties are unable to enforce any debt payable to them by Mr Brake, and these protections apply to all joint debtors (that is, the first and third defendants, Mrs Brake and her son Tom D'Arcy). They further submit that accordingly the making of an order for a payment on account of costs would not benefit any party, “and quite conversely risks a further impact/deterioration in Mr Brake's mental health”. They say that this alone constitutes a “good reason”, within CPR rule 44.2(8), not to make an order on this application.
Other grounds of resistance
In any event, however, the Brakes submit that the fees for the first counsel team were not reasonable in amount, and those for the second team neither reasonably incurred nor reasonable in amount. As to the former, they say, firstly, that only a quarter of the hearing time was devoted to the application, and only nine pages of the Guy parties' 53 page skeleton argument were concerned with it.
As to the latter, they say that Mr Sutcliffe QC undertook all the advocacy, and the first counsel team were the authors of the entirety of that part of skeleton argument which was concerned with the application. Moreover, the second counsel team “had no meaningful knowledge of the matters complained of nor addressed during the course of the Guy parties' submissions”.
Accordingly, the Brakes submit that the court should disregard...
To continue reading
Request your trial
-
Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...conceded the point for the purposes of an earlier judgment in this litigation, given on 4 June 2021, and found under neutral citation [2021] EWHC 1500 (Ch). It is correct that the question whether a future debt could be a moratorium debt, by means of the additional debt procedure, was rais......
-
Susan May King v Bar Mutual Indemnity Fund
...does not mean that the debt is not a liquidated sum” (emphasis added). 57 Thirdly, they rely on Axnoller Events Ltd v Brake [2021] EWHC 1500 (Ch). This case also concerned a debt arising out of a costs order subject to a right of assessment, pursuant to CPR 44.2(8). However, it was relied ......
-
Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...as it was not in issue before me. It was in issue previously, and I dealt with it in paragraph 22 of my judgment of 4 June 2021 ( [2021] EWHC 1500 (Ch): “The order of 2 May undoubtedly created a contingent liability of uncertain amount. But it could not be enforced before being liquidated ......
-
Brake V Guy Breathing Space
...[2021] EWHC 949 (Ch) and [2021] EWHC 1282 (Ch)). The latest judgment of HHJ Paul Matthews, Axnoller Events Ltd v Brake & Anor (Costs) [2021] EWHC 1500 (Ch), is of interest, however, as it considers the effect of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Mo......