Christopher Andrew Corfield v Christine Marie Howard

Hearing dates: 30 September 2024

Approved Judgment

This judgment was handed down remotely at 10.00 am on 30 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HH JUDGE Davis-White KC

HH Judge Davis-White KC:

This is an application, by application notice dated 30 January 2024, by the Defendant, Christine Marie Howard. In it she primarily seeks (as has now been clarified) declaratory relief as to the meaning of and enforcement of a settlement agreement (the “Settlement Agreement”) scheduled to a Tomlin order (the “Tomlin Order”) in proceedings between her and the Claimant, Mr Christopher Andrew Corfield. A Tomlin order is an order staying the proceedings on the basis of an agreed settlement between the parties, which agreement may, if necessary, be enforced in the proceedings.

The substantive proceedings were commenced by claim form issued on 1 May 2018. The Tomlin Order was made on 19 June 2020. (It is defective in identifying the sitting dates of the trial but not clearly the date of the order itself. I order amendment of the same under the slip rule, CPR r40.12). I understand 19 June 2020 to have been the fifth day of the trial, settlement negotiations having commenced towards the end of the preceding court day.

On this application I heard from Mr Lee O'Sullivan of Counsel, on behalf of the applicant and Defendant to the original proceedings, Ms Howard. Mr Seth Kitson of Counsel, represented the Claimant and respondent to the application, Mr Corfield. I am grateful to both Counsel for their submissions. Neither were counsel at the time that the settlement agreement was negotiated and the Tomlin Order made.

Skeleton arguments

I should note that by a consent order dated 26 June 2024, skeleton arguments were due to be served and filed by 10am one clear day before this hearing. The hearing being on Monday 30 September 2024, this meant that Skeleton arguments were due to be filed and served by 10am on the preceding Thursday, 26 September 2024. No skeletons had been filed and served by the due date. Court staff time was then taken up in identifying the breach and writing chasing letters to the parties' respective lawyers.

Mr Kitson filed his skeleton by email sent or received at 21:59 on 26 September 2024.

By email sent/or received the following day at 15:41 Mr O'Sullivan apologised for the fact that his skeleton argument was not ready and said that this was due to the “timing of his instructions”. A skeleton was sent through by email on Sunday night, 29 September at 23:33.

On enquiry of Mr O'Sullivan at the start of the hearing it appears that at the time papers were sent to him to prepare a skeleton argument he was engaged in another case or cases in court. On this occasion I do not need to enquire further as to where the fault lay. Counsel (or Counsel's clerk) and instructing solicitors should liaise in good time to ensure that the required skeleton argument can be prepared by counsel by the required time, and that should include taking into account counsel's other commitments and the time needed to get the documents to counsel.

There still seems to be a prevalent view that skeleton arguments can be lodged late, as long as they are received by the Court in advance of a hearing and with a period between delivery that the relevant party's legal advisers consider sufficient. As has been pointed out by many Judges, the delivery of skeleton arguments in accordance with guidance or court order is essential for the efficient running of the courts. If skeleton arguments are not delivered when required, staff and judicial time can unnecessarily be taken up in chasing for them and hearings can be elongated. This can be to the detriment of other litigants. Both the Judge and the other side need time to consider skeleton arguments which are lodged and served. Further, it cannot be assumed that a Judge is able to devote all the time required solely to one case at the time that a party would like this to be done, for example in this case, Monday morning of the hearing or that this gives the other side time to prepare and react accordingly to legal arguments and authorities that may be relied upon in the late skeleton argument.

Furthermore, skeleton arguments in this case were in terms ordered by the court to be produced by a certain time. This was not simply guidance or a request. There seems also to be a view that court orders as to skeleton arguments are somehow less effective or have less force than other court orders. As I made clear to Mr O'Sullivan, the court is likely to impose sanctions in cases as egregious as these. Indeed, one possibility in like cases is that the Court will have to adjourn a hearing at the cost of the party in default, though happily such an extreme measure was not necessary in this case.

The original proceedings

The original proceedings concerned a legal business partnership between Mr Corfield and Ms Howard. The business of the partnership was the buying and letting of residential properties. The properties were acquired in joint names. At the time when the business partnership commenced, Mr Corfield and Ms Howard were also romantically involved and, as I understand it, “partners” in a personal relationship sense too.

I refer to the properties as “Partnership Properties”. In this case legal title to the properties was vested in the names of Mr Corfield and Ms Howard. A partnership such as that in this case is not a legal entity and cannot hold legal title to real property. There is of course a legal distinction between properties that are held legally on trust for a partnership and which are partnership assets and those which are beneficially owned by partners but used for the purposes of the partnership business. I do not need to decide the strict legal position in this respect in this particular case and the difference in this case would primarily be relevant to creditors of the partnership. I use the term “Partnership Properties” for convenience but do not thereby indicate which of the two ownership structures that I have just identified applied.

In his witness statement on this application, Mr Corfield says that he and Ms Howard split as a couple in about 2008 and that he then moved away. Ms Howard thereafter continued to manage the properties and effectively enjoyed the income from them. Legal proceedings seeking a dissolution of the partnership, appropriate accounts and inquiries to wind up the partnership including sale of the Partnership Properties and damages for alleged breaches of duty by Ms Howard (relating to certain management decisions taken by her) were issued, as I have said, by Mr Corfield in May 2018. The proceedings were hotly contested.

The proceedings as issued were allocated the number E50NE070. That claim number has since been substituted by a new number to enable the proceedings to be entered into the court's electronic filing system.

As is recorded in the Settlement Agreement, at the time that the agreement was entered into the parties were the joint legal owners of some 15 (remaining) Partnership Properties, mainly situated in Heaton, but two of which were in Gateshead.

As is clear from a witness statement dated 9 April 2024 of Mr Dominic Martin Cassidy, a partner in the solicitor's firm of Paul Dodds Law, and which is in evidence before me, by the time that the settlement agreement was entered into that firm had already acted on the sale of four of the Partnership Properties, which sales apparently completed between December 2018 and January 2019. As a result Paul Dodds Law was, at the time of the settlement deed, holding net proceeds of sale in relation to such properties. In total therefore, and for relevant purposes, there were 19 Partnership Properties of which four were sold during the course of the proceedings and prior to the making of the Tomlin Order.

The Settlement Agreement: 19 June 2020

Mr Corfield suggests in his witness statement that negotiations commenced at the suggestion of the trial Judge. Ms Howard suggests that the initiative was hers. Nothing turns on the point. As regards the process of reaching agreement, it seems that there may have been an agreement in principle reached between the two parties meeting alone and personally first. Whether or not this is the case, and whatever the level of detail agreed between the parties personally, it is clear that the terms of the Tomlin Order and the Settlement Agreement itself were drafted and negotiated between the two Counsel then acting in the case and that final agreement was only reached at about 10pm that night.

The Settlement Agreement is comparatively short but has to be considered as a whole. Its terms are as follows:

“ The parties have reached the following terms in full and final settlement of all claims made between each other whether now or in the future and in settlement of claim no. E50NE070.

The Claimant and the Defendant agree as follows:

1. The partnership between the Claimant and the Defendant is dissolved and the affairs of the partnership are agreed to be wound up as at 31 March 2019.

2. The Claimant and the Defendant are the joint legal owners of the following properties (“the Properties”):

[15 properties are then identified by address]

3. The Defendant shall be entitled to all income from the...