Graham Brown and Another v Maurice Bennett and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE NEUBERGER |
| Judgment Date | 18 December 2001 |
| Judgment citation (vLex) | [2001] EWHC J1218-6 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 December 2001 |
| Docket Number | CH 1996 B No. 3328 |
[2001] EWHC J1218-6
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Mr. Justice Neuberger
CH 1996 B No. 3328
MR. R. ANDERSON (instructed by Messrs. Berwin Leighton Paisner) appeared on behalf of the Oasis Defendants.
MR. P. STANLEY (instructed by Messrs. S.J. Berwin) appeared on behalf of the Apax Defendants.
MR. R. STEWART Q.C. (instructed by Messrs. Richards Butler) appeared on behalf of the Barrister Respondents.
MR. G. MANSFIELD Q.C. and MR. D. DALE (instructed by Messrs. Reynolds Porter Chamberlain) appeared on behalf of the Solicitor Respondent.
(As approved by the Judge)
INTRODUCTION
On the 16th November 2001 I handed down a judgment (the earlier judgment) in relation to a wasted costs application brought by a number of applicants against three barristers, Mr. David Oliver Q.C., Mr. Nicholas Asprey and
Mr. Timothy Evans (the barristers), and a firm of solicitors, Abrahamsons, all of whom had acted for a Mr. and Mrs. Graham Brown in proceedings brought against the applicants.
In accordance with the normal procedure set out in para.53.6 of CPR Costs Practice Direction, the applications were dealt with as the first stage of a potential two-stage process. I had to determine whether the applications should be permitted to go to a second stage.
I set out the detailed history of the proceedings in the earlier judgment. In brief, Mr. and Mrs. Brown had sued a large number of defendants, including the applicants, essentially basing their case on dishonesty. The Browns had had the benefit of legal aid, but it was withdrawn very shortly before trial, and they had to conduct the trial themselves. I dismissed the claim after the Browns had closed their case, on the basis that the defendants had no case to answer. Mr. and Mrs. Brown were refused permission to appeal by Lord Justice Aldous.
The applicants then sought wasted costs orders in respect of all of their costs against the barristers and against Abrahamsons. Their primary case was that there was no proper basis for pleading and maintaining allegations of dishonesty against any of the applicants. In respect of all the applicants, with one exception, namely Mr. Scott, I concluded, on the material available, that there had been sufficient evidence available to the respondents to justify pleading and maintaining allegations of dishonesty, but, in any event, because the Browns were not prepared to waive privilege, it would be impossible for the court fairly to determine the issue against any of the respondents, including in relation to Mr. Scott. However, I held that in relation to one matter the application for wasted costs could proceed. Before the proceedings had been issued the Browns had obtained a without notice injunction from Mr. Justice Ferris ("the injunction") against certain of the applicants (the injunction applicants) restraining destruction of documents in connection with the proceedings, and it appeared to me that, had certain evidence been revealed to Mr. Justice Ferris, he would probably not have granted the injunction.
I determined (a) there was no case against Mr. Evans because he had been involved only at a late stage in the proceedings on behalf of the Browns; (b) as against Abrahamsons, there was a case fit to go to a second stage but only on the limited issue of the costs (the injunction costs) incurred by the injunction applicants in connection with the discharge of the injunction; and (c) as against Mr. Oliver and Mr. Asprey, there was a similarly limited case fit to go to a second stage, subject to a question of privilege.
I now have to determine two issues. The first is that of costs, and the second is the privilege issue, to which
I have briefly referred. Both issues raise points of some difficulty.
COSTS
So far as costs are concerned, I consider that there are five main points to bear in mind:
(1) Mr. Evans was wholly successful in fighting off the application.
(2) Mr. Oliver and Mr. Asprey and Abrahamsons were substantially successful in that they have defeated the contention of the applicants that they should be ordered to pay the whole or any part of the applicants' costs of fighting the action.
(3) However, against Mr. Oliver, Mr. Asprey and Abrahamsons (the injunction respondents), the injunction applicants have succeeded in getting to the second stage so far as the limited issue of the injunction costs are concerned.
(4) Two points of principle were taken on behalf of the barristers on which they failed.
(5) A point of causation was taken on behalf of all the respondents, i.e. the barristers and Abrahamsons, on which they failed.
To my mind, the following three questions arise.
(a) In light of points (1) and (2), can it fairly be said that the barristers and Abrahamsons or any of them were successful so that they should be treated as entitled to an order for costs, notwithstanding points (3), (4) and (5).
(b) If so, should any order for costs in favour of each such successful respondent be reduced in light of points (3), (4) and/or (5) and, if so, by how much and in what way.
(c) Should any order for costs in favour of any of the respondents be on an indemnity basis.
I will deal with these three issues in turn.
Issue (a)
CPR r.44.3(2)(a) sets out the uncontroversial principle that the general rule is that the unsuccessful party will be ordered to pay the successful party's costs.
In light of point (1), I consider that Mr. Evans has clearly succeeded, and is at least prima facie entitled to an order for costs in his favour. The same is true of the other respondents, that is Mr. Oliver, Mr. Asprey and Abrahamsons so far as the claim of the applicants, other than the injunction applicants, are concerned. However, I think it would be unrealistic to treat Mr. Oliver, Mr. Asprey and Abrahamsons as having been anything other than generally successful against the injunction applicants, albeit that they were not wholly successful. They faced a claim for all the costs of an action over four-and-a-half years with many (over twenty) interlocutory hearings and a ten-day trial. All that now survives is a claim for the costs of discharging an interlocutory injunction, involving two mentions and one short hearing over a period of one month. In financial terms, the claims against them were for over £3 million, and all that remains is a claim for a little over £40,000 (the injunction costs).
Accordingly, I am clear in my mind that there should be an order for costs in favour of each of the respondents.
Issue (b)
The issues here are, first, whether the order for costs in favour of any respondents should be adjusted to take into account any success on the part of the injunction applicants, bearing in mind point (3), and, secondly, how far any order for costs should be adjusted in relation to all the respondents to take into account points (4) and (5).
The fact that a party is entitled to a favourable order for costs obviously does not mean that he should get all his costs. A reduction in that party's costs or a cross-order for costs in favour of the other party may be appropriate. For obvious reasons, the former course is to be preferred if possible (see CPR r.44.3(7)).
So far as the first aspect is concerned, that is the fact that the injunction applicants succeeded in getting to stage two of their wasted costs application against
Mr. Oliver, Mr. Asprey and Abrahamsons (the injunction respondents) in respect of a small but significant sum in relation to a discrete issue, it seems to me that an adjustment is appropriate. The basis of the injunction applicants' case is that Mr. Justice Ferris might well have refused to grant the injunction at all against the injunction applicants if certain documents had been produced.
My conclusion that this aspect, and only this aspect, of the wasted costs application by the injunction applicants should go to a second stage means that the wasted costs application was justified so far, albeit only so far, as the injunction costs were concerned. Not only can it be said that their applications were, albeit to this limited extent, justified, but that the time and costs taken up in considering the principles and the evidence relating to the issue of the injunction costs were justified. It seems to me that it would therefore be wrong not to take into account on the issue of costs as between the injunction applicants and the injunction respondents, the success of the injunction applicants on this issue. It took up significantly less time and effort in connection with preparation and the hearing than the time and effort devoted to the costs of the action.
As I have mentioned, as a matter of common sense and in accordance with CPR r.44.3(7), I ought to reduce the order for costs in favour of the injunction respondents rather than make a cross-order for costs in favour of the injunction applicants on this issue, if I properly can do so. I think
I can take that course in this case. The costs schedules provided by the barristers and by Abrahamsons are, not surprisingly, limited to costs in relation to work done by their solicitors and their counsel. Drawing on the experience obtained from making summary assessments of costs, I think
I can fairly assess the appropriate sum or percentage to deduct from the generally favourable order for costs in favour of the injunction respondents to take into account the success of the injunction applicants on this issue. In my view, the percentage of...
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