John Hunt v Annolight Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Arnold,Lord Justice Warby |
| Judgment Date | 10 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1663 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2021/0286 |
[2021] EWCA Civ 1663
Lord Justice Newey
Lord Justice Arnold
and
Lord Justice Warby
Case No: C1/2021/0286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Saini
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Marven QC (instructed by Walker Prestons Solicitors Limited) for the Appellant
Nikhil Arora (instructed by DAC Beachcroft Claims Limited) for Annolight Limited
Douglas Denton (instructed by BLM LLP) for Paragon Trade Frames Limited
Double T Glass Limited did not appear and was not represented
Hearing date: 19 October 2021
Approved Judgment
Three of the defendants to a claim by Mr John Hunt have applied for wasted costs orders to be made against his solicitors, Walker Prestons Solicitors Limited (“Walker Prestons”). The present appeal, by Walker Prestons against the dismissal by Saini J of their appeal against an order made by Judge Godsmark QC, raises issues as to when, if ever, it is appropriate to order the cross-examination of a lawyer facing a wasted costs application.
Basic facts
In 2016, Mr Hunt issued County Court proceedings for damages for hearing loss that he was alleged to have suffered as a result of exposure to noise at work. The defendants included Annolight Limited (“Annolight”), Double T Glass Limited (“Double T Glass”) and Paragon Trade Frames Limited (“Paragon”), for each of which Mr Hunt was said to have worked during one or more periods between about 1990 and 2007. Mr Hunt was represented by Walker Prestons.
In a request for further information under CPR Part 18 dated 29 January 2019, Annolight asked Mr Hunt whether he was the “Mr John Hunt” named as having been a director of the company at Companies House. On 5 May, Walker Prestons sent Annolight's solicitors, DAC Beachcroft Claims Limited (“DAC”), a letter enclosing draft replies with the assurance that a signed version would be served as soon as it was to hand. Shortly afterwards, Walker Prestons provided a copy of the document apparently signed by Mr Hunt on 9 May. In response to the question as to whether Mr Hunt had been a director of Annolight, the replies stated:
“No – I accept that I was born in March 1946, but I have never been a Director of Annolight Limited.”
A question of potential significance in relation to Mr Hunt's claim against Paragon was whether he had been supplied with hearing protection. The particulars of claim alleged that Paragon had not provided Mr Hunt with any hearing protection, but he appears to have said in response to a Part 18 request that ear plugs had been introduced and in his first report Mr Hunt's medical expert, Mr Zeitoun, proceeded on the basis that ear protection had been furnished. In a second report, however, Mr Zeitoun indicated that Mr Hunt had not been given any hearing protection and, when he was asked about the inconsistency, Mr Zeitoun said that he had been advised by Walker Prestons that his previous understanding had been inaccurate.
The case came on for trial before Judge Godsmark QC in the County Court at Lincoln on 12 December 2019. No one from Walker Prestons was present, but Mr Hunt was represented by counsel who told the Court that Mr Hunt had said that he had not signed the Part 18 response in which it was denied that he had been a director of Annolight. The Court was also informed that Mr Hunt was discontinuing his claim in its entirety. Annolight, Double T Glass and Paragon indicated that they wished to apply for qualified one-way costs shifting (or “QOCS”) to be disapplied as regards Mr Hunt (as is possible if a claim was “fundamentally dishonest” – see CPR 44.16(1)) and/or for wasted costs orders against Walker Prestons.
Judge Godsmark QC's order provided for Mr Hunt to pay the defendants' costs and for the “determination of whether [the costs order] should be enforceable against the Claimant, and/or should be paid by the Claimant's Solicitors” to be made at a further hearing. Judge Godsmark QC stipulated that any application for the costs order to be enforceable against Mr Hunt or Walker Prestons was to be initiated by 10 January 2020 and gave the following further direction:
“… any response or responses to that Application Notice are to be made by way of Witness Statements with a statement of Truth to be filed by 4:00pm on 24 January 2020. Any Witness Statement from Walker Prestons must be made by the supervising Partner with conduct of this claim.”
Between 3 and 10 January 2020, Annolight, Double T Glass and Paragon all issued application notices asking that the costs order be enforceable against Mr Hunt on the basis that he had been “fundamentally dishonest” and for a wasted costs order against Walker Prestons. None of the application notices itself expanded on the grounds on which a wasted costs order was said to be appropriate, but each application was supported by a witness statement. That relating to Annolight's application was made by Mr Jonathan Mitchell of DAC, who explained in paragraph 8 of his statement:
“It is the Defendants' position that the Claimant's solicitor failed to obtain proper instructions on the issue of the Claimant previously being a Director of the Third Defendant company. It is contended that if proper instructions had been obtained, it would have been apparent that the Claimant had no claim against the Third Defendant and should discontinue. Further, if the case had been properly conducted, the Claimant's Solicitor would have advised the Claimant of the same and the claim would not have been pursued or would have been discontinued at an early stage so that the costs incurred by the Defendants in meeting the claim would have been avoided.”
Mr Mitchell went on to refer to “concerns” about the signature on the 9 May 2019 Part 18 response, continuing:
“I await evidence from Walker Prestons in this regard, but if the replies were signed without the Claimant's knowledge then unnecessary time and costs have been incurred in this claim which is the fault of whoever signed the replies without knowledge of the Claimant, if that is indeed the case. If Walker Prestons did not sign the replies and these were signed by the Claimant, then the Claimant has been dishonest as documents show that he was a Director of the Third Defendant company.”
The witness statement in support of Paragon's application was made by Mr Andrew West, a partner in its solicitors, BLM LLP (“BLM”). Having noted that there was an “issue of whether [Mr Hunt] instructed his solicitors to sign the Part 18 replies on his behalf”, Mr West said that he sought “to adopt those parts of [Mr Mitchell's] evidence which are relevant to the issue and the application made by [Paragon]”. Mr West went on to say that the “other grounds on which [Paragon] seeks to enforce the costs of its defence against Walker Prestons in terms of their conduct arises by virtue of the following facts and matters in relation to the issue of whether [Mr Hunt] was or was not provided with hearing protection when employed by [Paragon]”, proceeding to detail inconsistencies in what had been said on that subject. Mr West also explained that the trial bundle which Walker Prestons had prepared for the December 2019 trial date had not included Mr Zeitoun's first report while the report had been put into the bundle which had been prepared in advance of an earlier (in the event, aborted) trial date.
On 24 January 2020, Mr Abid Sarwar of Walker Prestons made a witness statement. He explained that he was the supervising partner and director at the firm and that Mr Hunt's claim had been conducted by other fee earners in the firm under his overall supervision. He further said that his statement was limited to dealing with Annolight's application for a wasted costs order, that Walker Prestons were “necessarily limited in addressing matters which are clearly privileged” and that there “is no evidence as to whether this Firm did, or did not, take instructions from [Mr Hunt] as to whether he held a directorship at [Annolight]”. Mr Sarwar also said that it was “categorically” not the case that Walker Prestons had been involved in forging Mr Hunt's signature on the 9 May 2019 Part 18 replies. The replies, Mr Sarwar stated, “were signed by [Mr Hunt] electronically, pursuant to CPR r.5.3 and PD 5A(1)”. Mr Sarwar exhibited an electronic signature and a final audit report by way of evidence.
The defendants' applications came before Judge Godsmark QC at a telephone hearing on 22 April 2020. In the course of that, Judge Godsmark QC asked whether it was anticipated that Mr Sarwar would be required for cross-examination. Mr Nikhil Arora, who was appearing for Annolight, responded that he thought he “would be prepared to deal with this without [Mr Sarwar] being present”, but added that he thought that Mr Douglas Denton, who was appearing for Paragon, had “stronger points” to put in that connection. For her part, counsel for Double T Glass said that she did not require the presence of Mr Sarwar, but Mr Denton confirmed that he did. Mr Denton said:
“You will note [Paragon's] application, which appears at page 89 in the bundle, and whilst we adopt the position taken by [Annolight], there is an issue concerning the medical report of Mr Zeitoun and you will note, your Honour, that whilst [Mr Hunt's] solicitor, Mr Sarwar, has produced a...
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