Gold Harp Properties Ltd v John McLeod and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice McFarlane |
| Judgment Date | 09 April 2014 |
| Neutral Citation | [2014] EWCA Civ 532 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 April 2014 |
| Docket Number | A2/2013/1629(A) |
[2014] EWCA Civ 532
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Gerald
Claim No: 2CL10067
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Rimer
and
Lord Justice McFarlane
A2/2013/1629(A)
Mr Philip Brown (instructed by Direct Access) appeared on behalf of the Appellant
Mr Robert Bowker (instructed by Coles Miller LLP) appeared on behalf of the Respondent
This is an application made on 7 February 2014 by the claimants/respondents for an order under CPR Part 52.9(1)(c) imposing a condition upon the bringing of the appellant's appeal that Gloster LJ permitted on 17 January 2014.
The claimants are four individuals, including Michael Byrne and John Briars. The appellant is Gold Harp Properties Limited, the second defendant. The applicants were, when they made their application, apparently under the illusion that Matthew Ralph, the first defendant, is also an appellant, but he is not, as the applicants now correctly recognise. I shall refer to Matthew Ralph, with no disrespect, as "Matthew".
I must summarise the background. The litigation concerns the roof space in a house at 72–74 St Quintin Avenue, London, W10. The house is divided into flats and the roof space has been developed to a limited, but not yet habitable, extent. Long 135-year leases of the flats 5 and 6 in the roof space were granted in 2000 to Michael Byrne and John Briars. The titles to their leases were registered.
Matthew acquired the freehold of the property in 2009. He is the son of the fifth Defendant, Grahame Ralph, a property developer, whom I shall call "Grahame". On 30 July 2009, Matthew applied to HM Land Registry for the claimants' leases to be closed on the grounds that they had been forfeited by peaceful re-entry on 27 July 2009. The Land Registry closed both titles on 2 August 2009.
On 3 August 2009, Matthew granted a new long lease of the roof space to Insignia Property Limited, the third defendant. Its title to that lease was registered. Insignia then assigned that lease to Lavender Estates Limited, the fourth defendant, on 28 February 2011 for a stated consideration of £10,000. On the same day, Lavender assigned the lease to Gold Harp, the appellant, for a stated consideration of £150,000.
The claimants challenged the validity of the closures of their leases by proceedings in the Central London County Court commenced on 11 November 2011, although they had known about the closure of their titles since October 2009. There were several hearings before HHJ Gerald in the County Court resulting in several orders.
The order under challenge on Gold Harp's appeal is dated 24 May 2013, but I must first refer to an earlier order. That order is dated 2 March 2013 and was made at a time when the only defendants were Matthew and Gold Harp. It records the judge's finding after the trial that the claimants' leases of the roof space had not been forfeited by peaceful re-entry and that HM Land Registry should not have closed their titles. By this order, the judge adjourned the proceedings to enable the claimants to claim consequential relief, including rectification of the register.
The order permitted the joinder of Insignia and Lavender as defendants, and added them as such there and then. It also permitted an application to join Grahame as a defendant for the purposes of applying for a costs order against him. The order gave directions for the future conduct of the claim. Importantly, by paragraph 10, it ordered the defendants, meaning Matthew, Gold Harp, Insignia and Lavender, to pay the claimants' standard costs and ordered a payment of £30,000 on account by 4.00 pm on 5 April 2013.
Following the subsequent trial of the rectification claim, the judge made his order of 24 May 2013. The claimants were again successful. By paragraphs 1 to 4, the judge made orders whose effect was to reinstate the claimants' long leases as if they had never been closed and to give them priority to Gold Harp's lease of the roof space. Paragraphs 6 to 9 made orders that the defendants pay the claimants' costs of the determination of the issue the judge had decided.
Those paragraphs also gave permission to add Grahame as a costs party, although did not make any costs order against him at that stage. Grahame was then added as a costs party on 21 November 2013. The judge ordered him to pay the claimants' standard costs of the claim, including payment of £30,000 on account ordered on 22 March 2013. He was, in theory, thereby being ordered to pay a sum that was due for payment some seven months earlier, but I interpret the order as meaning that he had to pay it within the conventional period of 14 days from the date of that order. He did not pay it.
In the meantime, the claimants had taken some steps towards enforcing the "on account" costs order against Matthew. On 9 July 2013, they obtained a final charging order against his freehold interest in the property, charging it with the £30,000 costs he had been ordered to pay on 22 March, plus costs and interest.
On 21 August 2013, they obtained a charging order for the like sums against Matthew's interest in a house in Tadworth, Surrey, an order which was confirmed by a subsequent order of 3 January 2014. The evidence before the court is that this house is owned by Matthew, Grahame and Grahame's daughter, who is not a party to the proceedings. The claimants have not sought to enforce either charging order, nor have they taken steps to enforce the costs orders made against Gold Harp on 22 March 2013 or against Grahame on 21 November 2013.
Gold Harp is now an appellant with, as I have said, Gloster LJ's permission, the order under challenge being that of 24 May 2013. The application before us is that Gold Harp's permission to appeal be made conditional on both Matthew and Gold Harp paying the claimants, or into court, the £30,000 costs sum.
Since only Gold Harp is the appellant, it appears to me that any such condition, if it is to be imposed at all, can formally only be imposed on Gold Harp, although, in considering whether any such condition ought to be imposed, it would no doubt be relevant to have regard to the ability of those behind and associated with Gold Harp to satisfy the order.
The application is supported by a witness statement from the claimants' solicitor, Anthony...
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