Axnoller Events Ltd v Nihal Mohammed Kamal Brake
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 19 August 2021 |
| Neutral Citation | [2021] EWHC 2343 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: E00YE350, F00YE085 |
[2021] EWHC 2343 (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) appeared on behalf of Axnoller Events Ltd and The Chedington Court Estate Ltd
Mrs Nihal Brake appeared on her own behalf and that of Mr Andrew Brake and Mr Tom D'Arcy Consequential matters decided on written submission only
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
On 17 August 2021 I formally handed down written reasons ( [2021] EWHC 2308 (Ch)) for the decision I had made in principle on 13 August 2021, following an all-day hearing on 12 August of the Guy Parties' application dated 26 June 2021. I had circulated my reasons in draft on 16 August. I have received written submissions on consequential matters, for which I am grateful, and now give my decision on these.
Submissions
Costs
The Guy Parties ask for 50% of their costs on the standard basis, on the grounds that they were partially successful. They also seek these as part of the unless order to be paid on 30 September. The Brakes resist this, and submit that they won on the majority of issues, and that therefore they should have their costs. As they are litigants in person, they would in fact be content with no order as to costs.
Permission to appeal
The Brakes also ask for permission to appeal, on the basis that the Regulations are new, and this is the first case to consider the meaning of “additional debt” under regulation 15. Their grounds of appeal are (1) that “additional debt” should include future debts, for the reasons already argued, and (2) that costs orders are in any event debts dating from the past, because by entering into litigation parties render themselves potentially liable for costs orders: see Re Nortel [2014] AC 209, [89]. Here the two costs orders arose out of decisions that had been made before the moratorium was entered into, on 13 April and 2 May respectively.
Other matters
If permission is given, the Brakes seek a stay on the basis that they would suffer “irreparable harm” if they had to draw down pension funds with a consequential charge to tax, which could not be remedied if the appeal succeeded. They also ask whether, if they cannot draw down their pension funds, they could assign them to the Guy Parties. Finally, they seek to remove what they call the Brake Family Trust from the claim.
Reply
The Guy Parties say in reply that the Brakes had the means to pay the costs orders but chose not to do so. They should therefore pay the costs, albeit discounted to reflect partial success. They also resist the application for permission to appeal and the stay. They resist the former on the basis that ground (1) has no real prospects of success, and that ground (2) was not an issue in the proceedings, and was decided against the Brakes in my earlier judgment of 4 June 2021, which has not been appealed. In any event, Re Nortel was dealing with contingent liabilities, not debts, and is not relevant to the present issue.
Costs
Law
I deal first with costs. Under the general law, costs are in the discretion of the court ( CPR rule 44.2(1)), but if the court decides to make an order about costs, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party: CPR rule 44.2(2)(a). However, the court may make a different order: CPR rule 44.2(2)(b). In deciding whether to make an order and if so what, the court will have regard to all the circumstances, including conduct of all the parties and any admissible offer to settle the case (not under CPR part 36) which is drawn to the court's attention: CPR rule 44.2(4).
I consider that it is appropriate to make a costs order. This was a significant application and produced a result. The application of the general rule would require me to ascertain which is the successful party. In Kastor Navigation Co Ltd v Axa Global Risks (UK) Ltd [2004] 2 Lloyd's Rep 119, Rix LJ (giving the judgment of the Court of Appeal) said (at [143]) that the words “successful party” mean “successful party in the litigation”, not “successful party on any particular issue”. And in In Day v Day [2006] EWCA Civ 415, [2006] CP Rep 35, Ward LJ said (at paragraph 17):
“in a case like this, the question of who is the unsuccessful party can easily be determined by deciding who has to write...
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Nihal Mohammed Kamal Brake v Geoffrey William Guy
...delivered on 17 August 2021: [2021] EWHC 2308 (Ch), [2021] 1 WLR 6218. I refused the Brakes permission to appeal on 19 August (see [2021] EWHC 2343 (Ch)), and so far as I know neither side took the matter any 11 The judgment of 17 August dealt with the structure and provisions of the 202......
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Axnoller Events Ltd v Nihal Mohammed Kamal Brake
...the Brakes should pay 50% of the costs of the Guy Parties of the application notice of 26 June 2021, to be summarily assessed: see [2021] EWHC 2343 (Ch). This will be on the standard rather than indemnity basis: see CPR rule 44.3(4). Summary assessment is dealt in the procedural rules with......