Michael Wilson & Partners Ltd v T I Sinclair
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 28 April 2020 |
| Neutral Citation | [2020] EWHC 1017 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2019-000090 |
| Date | 28 April 2020 |
[2020] EWHC 1017 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Master Rowley (ASSESSOR)
Case No: QA-2019-000090
Joshua Munro (instructed by Michael Wilson & Partners) for the Appellant
No attendance by or on behalf of the 1st & 2nd Respondent
Hearing dates: 17 March 2020
Approved Judgment No. 2
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This second judgment should be read with my first judgment of 24 March 2020 (neutral citation: [2020] EWHC 704 (QB)). In the first judgment, I gave my reasons for concluding that the Appellant's (“MWP”) appeal against the order of Master Gordon-Saker (the Senior Costs Judge or “SCJ”), setting aside a default costs certificate obtained by MWP on 22 January 2019, should be dismissed insofar as it sought to challenge the decision in principle to allow the detailed assessment of MWP's costs to proceed. I invited further written submissions on three questions:
(a) whether the SCJ erred in declining to make the setting aside of the default costs certificate conditional on payment of costs certified in previous assessments;
(b) if so, whether I should vary the SCJ's order so as to impose such a condition;
(c) if so, precisely what condition should be imposed.
Submissions for the Appellant
For MWP, Mr Munro submitted that he had referred the SCJ to “various judgments, orders, default and final costs certificates” in the Appellant's favour, which the Respondents had not satisfied. The SCJ erred by not taking these into account. It would be unfair simply to set aside the default costs certificate without first requiring payment of all previous orders, because that would require WMP to incur further costs (of the assessment) which, in view of the Respondents' previous non-compliance, it was clear they would not be willing or able to pay.
Mr Munro invites me to vary the SCJ's order so as to make the setting aside of the default costs certificate conditional on payment within 14 days of the following amounts, which he says remain outstanding from previous judgments, orders and costs certificates:
(a) NZD 34,907 plus all interest accrued and accruing pursuant to judgments, orders and costs certificates of the New Zealand High Court, recognised by order of Master Thornett of 6 March 2018;
(b) USD 249,654.17 plus all interest accrued and accruing pursuant to Bahamas Court of Appeal certificate of taxation, recognised by order of Master Eyre of 22 October 2014;
(c) USD 88,072 plus all interest accrued and accruing pursuant to Bahamas Supreme Court certificate of taxation, recognised by order of Master Eyre of 22 October 2014;
(d) £91,112.79 plus all interest accrued and accruing pursuant to default costs certificate 37 of 2018 issued by the Senior Courts Costs Office on 21 February 2018;
(e) £148,327.98 plus all interest accrued and accruing pursuant to default costs certificate 18 of 2018 issued by the Senior Courts Costs Office on 21 February 2018;
(f) £4,857.33 plus all interest accrued and accruing pursuant to the default costs certificate issued by the UK Supreme Court on 11 July 2018;
(g) £4,889.03 plus all interest accrued and accruing pursuant to the default costs certificate issued by the UK Supreme Court on 11 July 2018;
(h) £77,000 plus all interest accrued and accruing pursuant to the order of Chief Insolvency and Companies Court Judge Briggs of 4 December 2018;
(i) USD 159,278.25 plus all interest accrued and accruing pursuant to a costs certificate issued by the Bahamas Court of Appeal, recognised by Master Eyre on 19 October 2014;
(j) All amounts payable by the Respondent to MWP plus all interest accrued and accruing pursuant to the order of Master Cook of 11 October 2019;
(k) £18,410.62, £83,410.62 and £22,010.75 plus all interest accrued and accruing pursuant to an assessment by the Judicial Committee of the Privy Council, recognised by order of Master Eyre of 6 August 2015 and the order of Master Cook of 11 October 2019.
Submissions for the Respondents
For the Respondents, Mr Sinclair responds that the SCJ was invited to make his order setting aside the default costs certificate conditional on payment of these judgment debts, but in the exercise of his discretion declined to do so. There is no basis for interfering with this. In any event, Mr Sinclair submits that MWP, whilst seeking to impose draconian conditions on the Respondents, ignores court orders and judgments against it. He relies in this respect on the judgment of Master Leonard of 25 February 2020, assessing costs payable to MWP by the Mr Sinclair in respect of proceedings in Privy Council appeals nos 74–79 of 2013. Addressing in general terms the proportionality of the costs claimed by MWP, Master Leonard said this at [50]–[54]:
“50. MWP has produced documentation purportedly evidencing Mr Sinclair's refusal to pay judgment debts. Whilst conduct is a factor in considering proportionality, I should make clear my view that Mr Sinclair's attitude to debt is not a significant consideration when judging the proportionality of MWP's claimed costs of applications 2013/0074 to 2013/0079, if only because it has nothing to do with the level of costs incurred by MWP on those applications. Even if it were a significant factor, I could hardly overlook the fact that MWP has been criticised by the Court of Appeal in the strongest terms for exactly the same sort of conduct.
51. Having assessed MWP's costs against Mr Sinclair in the High Court, the Supreme Court and the JCPC I am in a position to know that Mr Wilson is the driving force behind MWP's costs claims and that costs recovery, for Mr Wilson, is not a means of achieving a reasonable and proportionate indemnity against costs expended. It is, rather, yet another weapon in a personal war.
…
53. Anyone who comes between Mr Wilson and his opponents becomes, in that context, another opponent. So much is evidenced by the confrontational tone and content of much of MWP's correspondence with courts, including the costs clerk to the JCPC, and Mr Wilson's occasionally openly furious response to adverse rulings. Everything is taken personally: hence, for example, MWP's frequent announcements of its intention to appeal, which seems to be seen by Mr Wilson as something between a threat and a promise of personal vindication.
54. In short proportionality, for MWP, is not and has never been a consideration. Because of that; because reductions to date have been strictly limited to specific points raised by Mr Sinclair; and because MWP's bills as assessed on that basis alone remain exceptionally large for what has been done, I am quite unable to accept MWP's submission that its costs have already been reduced so much that they cannot now be disproportionate in amount.”
The criticisms referred to by Master Leonard at [50] of his judgment are contained principally in the judgments in Emmott v Michael Wilson & Partners Ltd [2019] EWCA Civ 219, [2019] 4 WLR 53. In my first judgment, I explained that, although Mr Sinclair was not a party to that decision, that did not mean that things said in the judgments there were irrelevant to the exercise of the SCJ's (or my) discretion. On the contrary, the observations of Gross and Peter Jackson LJJ (with whom Rose LJ agreed) were relevant and illuminating. For...
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