Julian Watson v Tariq Mahmood Sadiq and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Jackson |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWCA Civ 313 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2016/4523 |
| Date | 29 March 2017 |
[2017] EWCA Civ 313
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COMBINED COURT CENTRE
(HER HONOUR JUDGE CLARKE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Jackson
Lord Justice Flaux
B2/2016/4523
Mr M Gomulka (instructed by Neumans LLP) appeared on behalf of the Applicant
Mr N Isaac (instructed by Pro Bono (Direct Access Basis)) appeared on behalf of the Respondent
The original dispute between the parties in the present case arose in respect of two properties known as 25 Goldcroft and 67 Redwood Drive, both in Hemel Hempstead, Hertfordshire, which they had jointly owned. By his claim, brought in the Watford County Court in February 2010, the appellant, Mr Watson, alleged that the respondents had agreed to buy out his interest and he claimed various sums which he said were due to him as compensation when that deal went wrong.
The trial of the actions were listed before Mr Recorder Bueno, sitting at Luton County Court, on 26th March 2012. On the fourth day of trial, 29th March 2012, the action was compromised and formally concluded by a consent order in Tomlin form. Pursuant to that consent order, during the course of April 2012, the respondents paid cheques for some £74,000 to the appellant. Despite the compromise being set out in the consent order the appellant sought to challenge the consent order on appeal to this court, contending that it was vitiated by duress or lack of consent as a consequence of the conduct of the Recorder at trial.
The appellant's application for permission to appeal was granted by the Court of Appeal but the appeal itself was dismissed on 16th July 2013. It was ordered that the appellant should pay the respondents' costs of the appeal to be assessed if not agreed, and that he should pay them £5,000 on account of those costs by 6th August 2013. Undaunted, the appellant sought to appeal to the Supreme Court but permission was refused by the Supreme Court on 4th February 2014. Under that order the appellant was required to pay the respondents' costs of the appeal to the Supreme Court.
The Court of Appeal costs were in due course assessed by the Senior Courts Costs Office at some £47,448 and the respondents have the benefit of a costs certificate in that sum. That is, of course, equivalent to a judgment that can be enforced as such. The respondents also have the benefit of other costs orders in their favour against the appellant so that the total amount outstanding including interest is now in excess of £67,000.
In respect of the costs certificate for the Court of Appeal costs the respondents applied to the Watford County Court under CPR rule 71.2, for an order requiring the appellant, as a judgment debtor, to provide information about his means. In accordance with the Practice Direction under that rule the application set out specific documents sought and, in particular, questions the respondents wished the appellant to answer. Additional documents and questions were added later.
At a hearing on 11th August 2014 District Judge Chesterfield ordered the appellant to attend an oral examination on the next available date, with a time estimate of 4 hours and the order identified written questions put to the appellant initially and the documents he was required to produce at the oral examination. The order contained a penal notice. The oral examination hearing came before Deputy District Judge Shah on 1st May 2015. The appellant walked out of the hearing in circumstances described in detail by Hickinbottom J (as he then was) in his judgment at a hearing on 21st October 2015, on appeal from that order of the Deputy District Judge, which varied and set aside some of the orders made by the Deputy District Judge on that occasion. Hickinbottom J also considered whether the appellant was in contempt of court because he had walked out of the oral examination hearing.
At the hearing before Hickinbottom J the appellant indicated that he was prepared to participate constructively in the oral examination procedure and, although Mr Isaac, who appeared for the respondents then, as he does before us, was presciently sceptical as to whether the appellant would participate constructively, the judge considered that he should be given every opportunity to do so. He said this:
"I do not think it would be fruitful or helpful to investigate further whether an act of contempt was committed by the claimant at the earlier hearing. If the claimant fully complies with his obligations under CPR Part 71 in writing and at the new hearing then there will be no need to consider committal again at all. If he fails to comply with his obligations then the mechanism in Part 71 will roll forward, including if the judge dealing with the oral examination considers it appropriate, a reference to a Circuit Judge who may make a committal order under those provisions, of course taking fully into account the guidance in relation to such matters that has been given by the higher courts."
The matter subsequently came before Deputy District Judge Hickman at the Milton Keynes County Court on 25th April 2016, in circumstances where the appellant had failed to produce documents previously requested and ordered by the court to be produced. The Deputy District Judge made an order that by 4.00 pm on 6th June 2016 the appellant should produce:
(a) A full and un-redacted copy of his passport;
(b) Full and un-redacted copies of statements on an identified Nationwide account from 1st April 2015 to date;
(c) A letter of authority addressed to the manager of the Halifax Bank, Bletchley, authorising disclosure to the respondents' advisers and information concerning transactions on two identified accounts in the period 1st April 2012 to date; and
(d) Two copies of documents in his possession concerning the Lawrence Watson Trust, specifically copies of documents creating the Trust and documents evidencing payments by him to the Trust or to him by the Trust. The order noted that the appellant stated that he had disposed of such documents prior to issue of that application but he was ordered to use his best endeavours to obtain copies.
That order also contained a penal notice.
Immediately after that hearing on 26th April 2016 the appellant wrote a letter to the bank in purported compliance with paragraph (c) of that order which said:
"Could you please give me or can I authorise you to give me any information on account No 10290461 to anyone else."
To which the bank responded:
"We would not disclose any details of any account which is held within the Halifax."
This was a clear indication that the appellant's letter was in no sense a letter of authority as required by the court order.
An interim third party debt order for £67,487.76 was then made against HBOS Plc in respect of the Halifax account (10290461) on 9th May 2016. The bank wrote to the court on 1st June 2016, with the information that the balance on the account was £774.27, less than the amount of the order. That letter was clearly predicated upon the account being in the appellant's sole name.
At a further hearing before Deputy District Judge Hickman on 28th June 2016 the appellant informed the judge that, contrary to the letter from the bank dated 1st June 2016, the account was in fact a joint account in the names himself and his son, Lawrence Watson. In support of that contention he produced a letter dated 10th June 2016, from the bank to himself and his son about an insufficiency of funds in the account. He did not inform the court that he had in fact transferred the account into joint names on 3rd June 2016.
The order made on that occasion noted that the letter written by the appellant in purported compliance with paragraph (c) of the earlier order, that is to say the letter to 26th April 2016 to which I have referred, did not appear to be an appropriate letter of authority and the appellant's response to a request to sign an appropriate letter of authority at that hearing had been that he was not there to discuss that matter. He made a similar response when asked to indicate what if any endeavours he had made to get documents concerning the Trust. The order also noted that the copy of his passport appeared to have four pages missing. The court invited HBOS to comment on whether the account was a joint account as appeared from the letter from the Halifax of 10th June 2016. The file was to be referred to a Circuit Judge to determine if there had been a contempt of court.
At a further hearing on 6th September 2016, Deputy District Judge Hickman considered a letter dated 19th August 2016 from the Court Protection Order Unit of HBOS stating, contrary to what the appellant had told the judge at the previous hearing, that at the date of the interim third party debt order the account had been in the sole name of the appellant. The judge then ordered the third party debt order to be made final in the sum of £774.27, the balance on the account when the order was served. He also ordered that consideration of whether to refer the matter to the Attorney General in relation to contempt proceedings against the appellant should be deferred until a decision was made by a Circuit Judge as to the making of the committal order under CPR 72 as directed by the Deputy District Judge's previous order of 28th June 2016.
On 21st September 2016 Deputy District Judge Hickman made an order for the oral examination hearing, which had taken place before him on 25th April...
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