Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 23 June 2021 |
| Neutral Citation | [2021] EWHC 1706 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: E00YE350, F00YE085 |
| Date | 23 June 2021 |
[2021] EWHC 1706 (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
Stewarts Law LLP for the Axnoller Events Ltd and The Chedington Court Estate Ltd
Mrs Nihal Brake on her own behalf and that of Mr Andrew Brake and Mr Tom D'Arcy
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 short judgment is concerned with an issue that has arisen in relation to the single trial bundle which has been prepared for both of two forthcoming trials between the parties, who are in substance the same in each case. In the first case, the claimant (which is a wholly owned subsidiary of the defendant in the second case) claims possession of a property called West Axnoller Farm from the defendants. This claim is conveniently referred to as ‘the possession claim’. In the second case, the defendants in the first case are the claimants, together with the son of the first claimant, Mrs Brake, and they claim to have been unlawfully evicted from another property nearby called Axnoller Cottage. This claim is conveniently referred to as ‘the eviction claim’.
The two claims will be tried sequentially before me, beginning in September 2021 with the possession claim. For convenience, I will refer to the claimant in the first case and the defendant in the second case as ‘the Guy Parties’, because Dr Geoffrey Guy owns and controls both of them. Without intending any disrespect to them, I will refer to the defendants in the first case and the claimants in the second as ‘the Brakes’.
Background
In November 2020 I tried another case between essentially the same parties, known as ‘the documents claim’, and handed down two separate judgments on 25 March 2021: see [2021] EWHC 670 (Ch) and [2021] EWHC 671 (Ch). At that trial, the Brakes were represented by solicitors and junior counsel. At that stage it was anticipated that the trials of the possession claim and the eviction claim would take place in April and May 2021, and that the Brakes would be represented by the same team of lawyers, but including also leading counsel who had previously represented them.
However, in between the circulation of the draft judgment in the documents claim (on 19 March) and its formal handing down (on 25 March), the Brakes' leading and junior counsel withdrew from the case, leaving them represented only by solicitors. The formal hand down took place remotely, because of the Covid-19 pandemic, and the hearing of consequential matters was adjourned to a later date. For reasons with which I need not burden this judgment, the hearing of those consequential matters was dealt with by Marcus Smith J, on 31 March 2021. On that occasion, the Brakes appeared by newly instructed leading counsel, but only for the purpose of making an application by the Brakes to adjourn the consequential matters hearing. That application was refused by the judge for reasons which he gave at the time: see [2021] EWHC 828 (Ch).
Marcus Smith J went on to deal with a number of matters concerning the then shortly forthcoming two further trials. In particular, the judge directed as follows:
“17. There shall be a single combined bundle for the trial of the Possession Proceedings and the Eviction Proceedings (the Bundle). The parties shall liaise with each other and seek to agree the contents of the Bundle.
18. The Guy Parties shall be responsible for producing the Bundle. The Brakes shall provide comments on the draft index for the Bundle no later than 4 PM on 9 April 2021.
[…]
20. By 4 PM on 14 April 2021, the Guy Parties will provide the Brakes with an electronic copy of the Bundle (who shall be responsible for preparing their own hard copies, if so advised) and lodge a hard copy at Court.”
Marcus Smith J then referred the matter back to me. On 13 April 2021, I heard and decided further matters consequential on the two judgments I had earlier handed down in the documents claim. These included permission to appeal, costs, the question of potential contempt proceedings, and also an application that I recuse myself from the further trials. In each case I gave an oral decision immediately, and delivered written reasons for those decisions a few days later: see [2021] EWHC 949 (Ch).
I also directed that any application by the Brakes for an adjournment of the trials should be dealt with on written submissions only in accordance with a timetable which I laid down. Subsequently 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 as the advocate for the Brakes in the two trials. Directions were given in order to facilitate that. (As I say, the trials have now been relisted, to begin in September this year.)
This application
However, on 11 June 2021 notices of change of solicitor were filed in all the matters in which the solicitors had been acting for the Brakes, confirming that the Brakes were now acting in person. On 16 June 2021 Mrs Brake sent an email to the court, but not in fact copied to the Guy Parties, setting out paragraph 20 of the order of 31 March 2021 (though she actually referred to it as paragraph 4). She said that, although the Guy Parties' solicitors had supplied the electronic bundle ordered by the judge to her own solicitors, they had not provided her with a hard copy before they ceased to act. She had asked the Guy Parties for one, but they declined to supply it unless they were reimbursed for the copying and courier charges which would be made by external suppliers.
Accordingly, she asked the court to vary the direction of Mr Justice Marcus Smith in this respect. In her email she said that “we do not have enough money to pay for that and time is marching on without me being able to prepare”. She also submitted that there had been “a material change in circumstances since the order was made,” referring to the fact that she now had no representation at all. She said she was “already at a massive disadvantage as a litigant in person and need a physical bundle”.
On 17 June 2021, the Guy Parties' solicitors responded that they had now sent a hard copy of the trial bundle to the Brakes, and would be sending an invoice for reasonable copying and courier charges. Whilst that relieves the immediate pressure in enabling Mrs Brake to begin her preparations for the two trials, it does not of itself resolve the application made for a variation of the order of Marcus Smith J. In all the circumstances, and not least in order to deal with the matter as quickly as possible, I will not require Mrs Brake to issue a formal application notice. Instead, I will deal with the matter on the basis of the written submissions already made.
The law and practice
CPR rule 1.1 provides:
“(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; there
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.”
CPR rule 1.2 provides:
“The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.”
CPR Rule 3.1 relevantly provides:
“(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may —
[…]
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
[…]
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
CPR rule 39.5(1) provides that:
“Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by —
(a) a relevant practice direction; and
(b) any court order.”
This is repeated in paragraph 27.3 of the Practice Direction to CPR part 32, which is the “relevant practice direction” for the...
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Nihal Mohammed Kamal Brake v The Chedington Court Estate Ltd
...the supply of the trial bundles (in both the Possession and the Eviction Trials) to the Brakes: see Axnoller Events Ltd v Brake [2021] EWHC 1706 (Ch). In that judgment, I referred to (amongst other things) the overriding objective in CPR rule 1.1 (at [11]), the duty of the court under CPR ......