Gold v Mincoff Science and Gold (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEUBERGER |
| Judgment Date | 05 July 2004 |
| Neutral Citation | [2004] EWHC 2036 (Ch) |
| Court | Chancery Division |
| Date | 05 July 2004 |
| Docket Number | 6636 OF 1999 |
[2004] EWHC 2036 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2
Lord Justice Neuberger
6636 OF 1999
MR D AINGER appeared on behalf of the CLAIMANT
MR A DE FREITAS appeared on his behalf of the DEFENDANT
This is an application for costs made by Mr David Ainger on behalf of Mr Alan Gold, the claimant in the proceedings brought against a firm of solicitors, Mincoff Science & Gold, for whom Mr Anthony de Freitas appears. The application arises out of a claim brought in 1999 by Mr Gold against solicitors which has a complex history involving not merely a decision of mine, on which the claim for costs centres, dated 23 December 2000, but a decision of the Court of Appeal, in which my decision was considered, and subsequent orders made by masters. Quite apart from this, there had been proceedings, referred to in my judgment, between AIB Group (UK) Plc ("AIB") and Mr Gold and Mr Martin which had been to the Court of Appeal by the time I gave judgment. It subsequently went to the House of Lords.
The application for costs has been well argued on both sides and is not easy to resolve. Very briefly, Mr Gold was advised by his brother, who was a partner in the solicitors, in relation to a number of mortgages over properties which he purchased either on his own account or with a Mr Martin, all of which contained a clause in favour of AIB (who lent the money) whereby Mr Gold and Mr Martin assumed liability jointly and severally for the totality of the debt. Mr Gold contended in his original pleadings that the solicitors were negligent in not advising him as to the consequence of this. The solicitors defended by pleading a limitation defence simply based on the proposition that all the mortgages were entered into more than six years before Mr Gold brought this action and that in those circumstances, following authorities such as Forster v Outred & Co [1982] 1 WLR 86, the claims were statute-barred.
The particulars of claim were served on 14 July 1999. The defence raising the Limitation Act defence was served on 18 October 1999. Amended particulars of claim were served on 14 January 2000, not raising any answer to that. On 31 May 2000 a payment in, or Part 36 offer, of £300,000 was made, coupled with an offer to indemnify Mr Gold in relation to AIB's claim up to £1.2 million. That indemnity was withdrawn on 31 May 2000. There followed a case management conference and unsuccessful mediation attempts, and then on 2 November 2000 a further payment in of £1.175 million was made, as a result of which the total amount in court was £1.475 million. On 24 November 2000, for the first time, at least in open and clear communication, Mr Gold indicated that he intended to reply to the limitation defence.
The matter came on for hearing on 29 November 2000. There were effectively three answers proposed to the limitation defence, all of which were said at least arguably to require an amendment to the particulars of claim or the service of a reply. The amendment to the particulars of claim, which I permitted, involved an alternative way of putting the case, namely that when in 1993 Mr Gold and Mr Martin effectively restructured their borrowing from the bank, the solicitors should have advised them such that Mr Gold would have become aware of their prior breaches and would have been able to start proceedings against them in time. Alternatively, they would have been able to renegotiate with AIB such that he was no longer jointly liable for Mr Martin's liabilities. Further, by a reply which I permitted in principle on 30 November 2000 and which was actually served on 8 December 2000 (during the trial) it was pleaded that Mr Gold could rely on section 14A or section 32 of the Limitation Act 1980.
I gave judgment on 21 December 2000, as I have mentioned. In favour of the solicitors, I held that in principle the time bar had come down for a simple claim based on the earlier mortgages, ie the mortgages prior to 1993. But I held also that the time bar did not prevent Mr Gold from succeeding because his argument based on section 14A was good. I also held that his argument based on section 32 was good, as the law then stood, although (and it does not matter for present purposes, in the light of my findings on section 14A) I strongly suspect that the conclusion on section 32 cannot survive a recent decision of the House of Lords. But that is unnecessary, as I say, for this judgment. I also held that there was a fresh cause of action resulting from the failure to advise in 1993.
The matter having gone to the Court of Appeal and the matter now having gone before the master with one hearing before me for clarification, the solicitors accept that, even taking into account the fact that there is a substantial component of interest, the damages recoverable by Mr Gold will on any view mean that the payment into court is beaten, including the increased payment into court of £1.475 million. In those circumstances the claimant, Mr Gold, is prima facie entitled, as Mr Ainger rightly submits and Mr de Freitas realistically accepts, to his costs of the action unless, as Mr de Freitas strongly submits is the case, there are good reasons not to make an award of costs in his favour.
I have not been addressed on the precise provisions of CPR Part 44, and in particular the general principles helpfully set out in Part 44.3. I think, if I may say so, both parties were right not to refer to it, not because it does not bind me but because the principles are not in doubt, and indeed not in dispute.
Mr de Freitas raises four...
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