Deborah Giddens v Brian Frost
| Jurisdiction | England & Wales |
| Judge | Russen |
| Judgment Date | 22 June 2022 |
| Neutral Citation | [2022] EWHC 1602 (Comm) |
| Docket Number | Case No: CC-2019-BRS-000018 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 1602 (Comm)
HH JUDGE Russen QC
(sitting as a judge of the High Court)
Case No: CC-2019-BRS-000018
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS IN BRISTOL
CIRCUIT COMMERCIAL COURT
Bristol Civil & Family Justice Centre
2 Redcliff Street
Bristol
BS1 6GR
John Virgo (instructed by Wards Solicitors LLP) for the Claimant
Andrew Dinsmore (instructed by Greenberg Traurig) for the First and Second Defendants
Judgment on Consequential Matters
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.
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of its handing down is deemed to be 10.00am on Wednesday 22 June 2022.
HH JUDGE Russen QC
HHJ Russen QC:
This is my judgment on the consequential matters arising out of my judgment dated 12 May 2022: [2022] EWHC 1022 (Comm) (“ the Judgment”). I will continue to use the definitional terms adopted in the Judgment. The matters in question are: (1) the costs of the preliminary issue; (2) the application by BF and TFP (together “ the Defendants”) for permission to appeal; (3) a stay of the costs order pending the determination of the intended appeal; (4) a stay of the proceedings pending the determination of the intended appeal; and (5) the costs relating to this judgment.
This judgment contains my decision on those consequential matters following a determination on the papers. In his skeleton argument dated 24 May 2022 mentioned below, Mr Dinsmore said that the applications for permission to appeal and for a stay pending appeal were of critical importance to the Defendants and that there should be an oral hearing on these consequential matters. A remote hearing of 2 hours, with 1 1/2 hours pre-reading was suggested. Mr Virgo's responsive note dated 4 June 2022 invited me to determine the applications on paper.
In my judgment, these consequential matters are entirely suited to a determination on the papers as such matters are as often than not so determined following the handing down of a written judgment. The parties have taken advantage of the opportunity to explain in writing their position on the various issues which relate to matters that are fresh in my mind and addressed in the Judgment. Those substantive matters were themselves aired at a hearing which lasted only a day. A determination on the papers is consistent with the overriding objective. That objective favours the consequential matters being determined without the further costs of an oral hearing being incurred.
I have considered the following documents in reaching my decisions:
i) the Claimant's Preliminary Note on Consequentials dated 10 May 2022 with draft Order attached;
ii) the Defendants' Application Notice, draft Order, Grounds of Appeal and Skeleton Argument, each dated 25 May 2022;
iii) the Claimant's Note on Consequentials dated 26 May 2022 and Form N260 Statement of Costs attached;
iv) the Claimant's Responsive Note to the Defendants' Applications for a Stay and Permission to Appeal dated 4 June 2022;
v) the Defendants' Costs Submissions dated 9 June 2022 and draft Order attached;
vi) the Claimant's Responsive Note to the Defendants' Note on Costs dated 9 June 2022; and
vii) Mr Dinsmore's email dated 14 June 2022.
Costs of the Preliminary Issue
As the successful party under the Judgment, DG seeks an order that BF and TFP pay her costs of the preliminary issue summarily assessed in the sum of £45,331.40 including VAT. That sum is compared with the figure of £71,883 in the Defendants' statement of costs (ignoring a separate sum of £33,912 in relation to specific disclosure).
The Defendants recognise DG's entitlement to costs, on the standard basis, but challenge the level of costs claimed for a number of reasons. Those are set out in detail in their submissions dated 9 June 2022. Mr Virgo responded in detail by his submissions of the same date. I bear in mind that the costs of the Defendants' application dated 11 March 2021 which led to the Order dated 14 July 2021 (both of which are mentioned below) were reserved. One of the points made by the Defendants is that costs were increased as the result of the DG's breach of her duty to preserve disclosure.
Having reflected upon the rival written submissions, I propose to make a discount in the DG's recoverable costs to reflect that last point; the Defendant's point that aspects of her disclosure can be said to have gone beyond disclosure relating to the preliminary issue of limitation (as directed by paragraph 6 of the Order dated 25 September 2020 also mentioned below); the fact that some costs were incurred in preparing witness evidence which either related to the March 2021 application (stemming from the DG's failure to preserve documents) or which was not deployed at the trial of the preliminary issue; and, finally, the adjustments conceded at paragraphs 4.4 and 4.6 of the Mr Virgo's submissions. My summary assessment reflects the factors identified in CPR 44.4 (in particular the need for costs assessed on the standard basis to be reasonably incurred and a party's conduct) and also the point made by Mr Dinsmore, by refence to DVB Bank SE v Vega Marine Ltd [2020] EWHC 1704 Comm, at [33], that the summary assessment of costs was not intended to be a 100% costs recovery regime.
I accordingly summarily assess DG's costs payable by the Defendants in the sum of £38,400 including VAT.
Permission to Appeal
BF and TFP wish to appeal the Judgment on the following 3 grounds:
“1. There was a serious procedural, or other, irregularity in reaching judgment without expert evidence on the plausibility of Ms Giddens' account which was unjust because it led the Court to err in its conclusion that Ms Giddens did not deliberately delete her emails.
2. The Court's conclusion that Ms Giddens had not deliberately deleted her emails was unsupported by evidence and involved a demonstrable failure to consider relevant evidence.
3. The Court erred in its conclusion that Ms Giddens did not know of the alleged breaches, and could not have known through the exercise of reasonable diligence, prior to 26 November 2016.”
In formulating and advancing all three grounds of appeal the Defendants rely upon the language of CPR 52.21(3) and the judgment of Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 W.L.R. 2600 where, at [67], he identified the circumstances in which an appeal court will interfere with a trial judge's finding of fact by saying:
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
The first two grounds arise out of my acceptance of DG's evidence in concluding that she did not deliberately delete her emails (the Judgment at [122]). The first is based upon the contention that DG can only have benefited from the absence of expert evidence pertaining to the plausibility of her account of their inadvertent deletion through a serious procedural (or other) irregularity. I noted the absence of such expert evidence both at the hearing and in the Judgment (at [118]–[119]). The second ground rests upon the absence of any other evidence to support DG's case on this point, aside of course from the account given in her witness statement and testimony, and the contention that I failed to consider other relevant evidence.
Although the first two grounds are related, the Defendants emphasise that they are separate grounds of appeal and that it would be open to me to grant permission on the second even if it was refused on the first. That said, the Defendants do not identify...
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