Landare Investments Ltd v Welsh Development Agency

JurisdictionEngland & Wales
JudgeMr Justice McKinnon
Judgment Date30 April 2004
Neutral Citation[2004] EWHC 946 (QB)
CourtQueen's Bench Division
Docket NumberCase No: 1997-L. No. 824
Date30 April 2004

[2004] EWHC 946 (QB)

IN THE HIGH COURT OF JUSTICE

CARDIFF DISTRICT REGISTRY

QUEENS BENCH DIVISION

Before:

The Honourable Mr Justice McKinnon

Case No: 1997-L. No. 824

Between:
Landare Investments Limited
Claimant
and
Welsh Development Agency
Defendant

JAMES GUTHRIE Q.C. and Witold Pawlak (instructed by Bevans) for the Claimant

ANTHONY TRACE, Q.C and Jonathan Russen (instructed by Edwards Geldard) for the Defendants

Hearing dates: 18 th-20 th February 2004

Approved Judgment

The Hon. Mr. Justice McKinnon

Mr Justice McKinnon
1

This is an application by the Welsh Development Agency ("WDA") made by application notice dated 12 th May 2003 for an order that Mr. Michael Harries do personally pay those costs ordered to be paid by the Claimant ("Landare") to WDA in these proceedings that still remain unpaid.

2

The application is made pursuant to section 51 (3) of the Supreme Court Act 1981 which provides as follows:

"The Court shall have full power to determine by whom and to what extent the costs are to be paid".

The procedure is governed by Part 48.2 of the Civil Procedure Rules 1998.

3

The application notice identifies the orders that have led to Landare's outstanding liability and costs. They relate to the trial costs, which include all the costs referable to WDA's defence of the proceedings during the period between 14 th August 1996 when the proceedings were commenced and October 1999 when the trial began. They also relate to the costs of an appeal lodged by Landare against my order dismissing the action. They further include costs arising from a charging order obtained by WDA against certain land held by Landare.

4

The proceedings commenced on 14 th August 1996. The trial commenced on 4 th October 1999. Judgment was given by me on 14 th April, 2000. On 18 th July 2001 Landare's appeal was dismissed by consent. The last payment by Landare towards costs was made on 23 rd August 2001, in the sum £102,028 being security for costs of the appeal.

5

The present hearing follows an earlier hearing on 10 th July 2003 before me at which Mr. Harries resisted his joinder pursuant to the provisions of Part 48.2 (1) (which was necessary before the Court could proceed to exercise its jurisdiction under section 51), arguing that this action (No. 1997 L. No. 824) no longer constituted "proceedings" before the court to which Mr. Harries could be joined. That was known as "the jurisdiction point".

6

By a judgment dated 29 th July 2003, I rejected the jurisdiction point and ordered Mr. Harries to be joined to the proceedings for the purpose of the present application. On 7 th August 2003 I refused, on paper, an application by Mr. Harries for permission to appeal on the jurisdiction point.

7

There are before me a number of witness statements. Kempton Metcalfe Rees has made two statements dated respectively 9 th May and 11 th December 2003. There is a witness statement by Mr. Harries dated 11 th December 2003, by Anthony Harris of 10 th November 2003 and Gwilim Powys Jones of 11 th November 2003.

8

The trial occupied some 49 days between 4 th October 1999 and 25 th January 2000. On 14 th April 2000 I handed down a 276 page judgment. The principal complaint of Landare was of misfeasance in public office committed by WDA and certain of its employees. The claimant owned Tirfounder Fields, a 52 acre site on the edge of Aberdare. In December 1989 the local Borough Council gave outline planning consent for a retail park on the site but imposed a condition relating to access, at a specific location, if more than 50,000 square feet of retail development were to take place. Strips of land required for access were owned by the Borough Council and the Highway Authority (the County Council). The strips were declared surplus to requirements. The proposal submitted by Landare contemplated a total development of 249,000 square feet of which all but 24,000 square feet was retail development.

9

In January 1992 officers of WDA decided to assemble and sell for development the Gadlys Road site which was nearer to the town centre of Aberdare and was in multiple ownership and occupation. The Agency did this although private sector developers had been interested in the site for some time. The Gadlys Road site did not enjoy planning permission for retail use. Officers of the WDA intended to carry out the development through a Joint Venture which WDA had established first with the Borough Council in early 1991 and a little later with the County Council as well. It was Landare's case that, once embarked upon the acquisiton of the Gadlys Road site, WDA found it desirable and necessary to frustrate Landare's development of Tirfounder Fields. Landare maintained that WDA knew that Landare would suffer damage as a result.

10

Landare's case was that the WDA frustrated the development of Tirfounder Fields by improperly influencing the Borough Council and the County Council not to sell the access strips to Landare. According to Landare, it had other normal but surmountable difficulties in developing the site, but it was WDA's action that proved the substantive and operative reason for the frustration of Landare's development. When members of the Borough Council and the County Council said that they would need good reason not to sell the access strips to Landare, the Joint Venture, so Landare maintained, fastened on to an environmental assessment of the Cynon Valley as a means of buying time. It was Landare's case that this was a dishonest exercise.

11

WDA, so Landare maintained, had no business to promote the Gadlys Road site in competition with private developers who were keen to develop the site. If it was proper for WDA to promote one site over another, it was only proper to do so if WDA acquired and dealt with its preferred site lawfully. WDA, according to Landare, did not acquire or dispose of the Gadlys Road site lawfully. It was Landare's case that WDA bought certain land for more than its market value and knew that they were acting unlawfully.

12

Landare maintained that it was entitled to expect that WDA and its officers would act within its powers. Landare expected competition, but it did not expect unfair competition from a government agency. They did not expect that WDA would assemble a site, purchasing parts of it, without authority for more than their worth, and then proceed, as WDA did, to sell the site to Tesco, with whom Landare had been negotiating, for less than the market price. Landare also alleged misfeasance against the Borough Council for their part in selling Gadlys Road to Tesco below its market value. Landare claimed to have suffered damage as a result of the actions of the WDA and of its officers because it was not able to sell its land until April 1998 when it exchanged contracts with ASDA for part of the site.

13

Landare also alleged a conspiracy to injure Landare by certain named defendants as well as interference with business by unlawful means against WDA and its officers as well as the County and Borough Councils. Further, inducing a breach of statutory duty was alleged against WDA and its officers.

14

The pleadings are complex and are accommodated in two lever arch files. A summary of my principal conclusions are set out at pages 271 - 276 of my judgment. Suffice it to say, I rejected Landare's claims in their entirety against all Defendants. I found that Landare had not proved that it had suffered any loss. I deal at pages 228 – 256 of my judgment with Landare's contention that, but for the impugned acts complained of, it had a real or substantial chance of attracting a superstore operator to the Tirfounder Fields site by late 1992/early 1993. I found as a fact that, by October 1992, there was no retail interest in the Tirfounder Fields site at all. Landare had in fact produced no satisfactory evidence to the contrary.

15

Following argument on costs on 14 th April 2000, I ordered Landare to pay indemnity costs. I said this:

"……this is an appropriate case, par excellence, in which indemnity costs should be awarded. The case should never have been brought. It was bound to fail. It cannot properly be characterised as other than an abuse of process".

THE LAW

16

In Aiden Shipping Co. Ltd –v- Interbuck Ltd (1986) 1 A.C. 965, The House of Lords emphasised the width of the Court's jurisdiction under section 51(3) (then section 51(1)), Lord Goff at 975 (F)-(H) and 979 (H) – 980(A). The House found no warrant for an implied limitation upon the Court's jurisdiction that confined it to making costs orders only against a party to proceedings.

17

In Taylor –v- Pace Developments (1991) B.C.C. 406 the Plaintiff sued the Defendant company and won and were awarded their costs which amounted to some £80,000. The company was hopelessly insolvent and had been at least since the commencement of the proceedings, and the Plaintiffs applied unsuccessfully for an order that the Company's Managing Director and sole beneficial shareholder should be jointly and severally liable for the costs together with the Company. It was likely that he was aware of the company's insolvency at all material times. It was held, in dismissing the appeal, that the Judge had properly exercised his discretion in favour of the Director. Lloyd, L.J. in giving judgment with which Nourse and Ralph Gibson L.JJ agreed said this at page 408)(g)-(h):

"There is only one immutable rule in relation to costs, and that is that there are no immutable rules".

Lloyd, L.J. then considered the argument presented by Mr. Rix, Q.C. in Aiden Shipping that the Court was clothed with the widest possible power and discretion and could do "perfect justice"...

To continue reading

Request your trial
3 cases
  • Excalibur Ventures LLC v Texas Keystone Inc. and Others (Defendants/Costs Claimants) Psari Holdings Ltd and Others (Costs Defendants)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • October 23, 2014
    ...of good faith or impropriety: Metalloy Supplies Ltd v M/A. (UK) Ltd [1997] 1 WLR 1613, 1620; an approach applied in Landare Investments Ltd v Welsh Development Agency [2004] EWHC 946 (QB). In Systemcare Lewison LJ drew attention to the " and/or" formulation. Both elements did not need to be......
  • Chung Wah Steel Works Co Ltd v Chan Kwong Kwan
    • Hong Kong
    • District Court (Hong Kong)
    • January 21, 2014
    ...[see: Barndeal Ltd v Richmond-Upon-Thames [2006] 1 Cost LR 47 at 55-56]. 14. In Landale Investments Ltd v Welsh Development Agency [2006] 1 BCLC 451, a costs order against the director of a company was sought on the ground that the action was held to be an abuse of process and its failure t......
  • Kong Lai Restaurant Ltd (In Liquidation) v Swallow Kingdom Properties Ltd
    • Hong Kong
    • District Court (Hong Kong)
    • January 23, 2014
    ...than in his own interests.” 44. Regarding the second of the above categories, in Landare Investments Limited v Welsh Development Agency [2006] 1 BCLC 451, a costs order against the director of a company was sought on the ground that the action was held to be an abuse of process. It was held......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT