Hunter v Senate Support Services Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEUBERGER |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1350 |
| Docket Number | A3/2004/1344 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 October 2004 |
[2004] EWCA Civ 1350
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JOHN RANDALL QC
(Sitting as a Deputy High Court judge))
Royal Courts of Justice
Strand
London, WC2
Lord Justice Neuberger
A3/2004/1344
MR PR GRIFFITHS (instructed by Messrs Reid Minty, London W1K 4DS) appeared on behalf of the Applicant
The Respondents did not appear and were not represented
This is an application brought by Mr Keith Hunter for permission to appeal one aspect of a decision of Mr John Randall QC, sitting as a deputy judge of the High Court, in proceedings which lasted over a period of some nine days in February 2004, were the subject of a very careful and detailed judgment on 1st April 2004 and in relation to which the decision on costs was the subject of a rather shorter judgment on 8th June 2004.
In a nutshell, Mr Hunter was the owner of shares which were, as the judge found, not fully paid-up, which were subject of a call which he failed (upon the judge's findings) to meet, notwithstanding that he had received or was deemed to have received the call, and which were as a result forfeited.
The judge had a number of issues to consider, all of which are set out in his full and careful judgment, and which were set out under a total of 11 headings after the introductory findings made by the judge, those 11 topics being set out in paragraph 62 of his judgment.
As Mr Peter Griffiths, who appeared below for Mr Hunter and appears on this application, says, the ultimate result was that Mr Hunter was completely successful. The forfeiture of his shares was effectively set aside and he was reinstated in the company's books as the owner of the shares. On that basis, as the judge accepted, prima facie the costs of this action, which must have been very substantial, were, on the brief history as I have set it out, to be awarded to Mr Hunter. He had won the action completely.
However, for reasons which the judge gave in his judgment of 8th June 2004, he concluded that no order for costs was the appropriate order. Mr Griffiths contends that this was an order which the judge should not have made and that, even allowing for the very wide discretion accorded to a first instance judge on the award of costs after a trial, he has a real prospect of persuading this court that the judge was wrong and that an order favourable to Mr Hunter should be substituted.
In that connection, Mr Griffiths accepts that the test is as laid down by Sir Murray Stuart-Smith in Adamson v Halifax Plc [2003] 1 WLR 60 at paragraph 16, where he quotes from his earlier judgment in Roache v News Group Newspapers Ltd [1998] EMLR 161, 172, a passage, as he says, approved in a subsequent decision of the Court of Appeal.
There is no doubt whatever that any appeal would face an uphill struggle, on the face of it. Where a judge has heard a case for nine days, has delivered a self-evidently extremely careful judgment, dealing with facts and law in great detail, and where he has evidently —both from the length of the judgment, the contents of the judgment, and his own statement in paragraph 24 of his second judgment —he reflected on the matter carefully, it is very difficult in principle for an appeal against his order on costs to succeed.
However, that is not to say that on those grounds alone it would be right to dismiss this application. Sometimes judges who can be said to have had the advantage of knowledge of all the details facts and matters of the case and a far greater understanding, having seen witnesses and heard many days of evidence and argument, than this court could ever hope to have, can suffer from the concomitant disadvantage of being too close: there is a risk that they do not see the wood for the trees. I have no doubt that I have been in that position myself at first instance. Therefore it would be quite wrong simply to say that, because this judge had been very careful, and knew all the facts and had produced two excellent judgments, there was no prospect of this court interfering.
Mr Griffiths in his argument fastens —to my mind realistically because I think it is the best point he can make —on the judge's reasoning in paragraph 4 of his judgment on costs. Mr Griffiths says that it was pleaded quite clearly in the particulars of claim on behalf of Mr Hunter that the decision to forfeit the shares had been made for an improper purpose: see paragraph 26B of the amended particulars of claim (page 19 of bundle 1). As he goes on to say, this is subject in...
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...good faith, he had failed to take into account relevant factors in the exercise of a discretion as chairman; similarly, in Hunter v Senate Support Services [2004] EWHC 1085 (Ch) a decision of company directors was set aside because they had failed to take into account considerations which t......