Michael Wilson & Partners Ltd v John Foster Emmott
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] EWHC 3882 (Comm) |
| Docket Number | Case No: 2006-000270 2013-000625 2014-000916 2015-000249 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 3882 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NH
HIS HONOUR JUDGE Pelling QC
(Sitting as a High Court Judge)
Case No: 2006-000270
2010-000804
2013-000625
2014-000916
2015-000249
Mr M E Wilson (instructed by Michael Wilson & Partners Ltd) appeared in person
Mr J F Emmott appeared in person
This is the hearing of an application dated 16 July 2020, issued by Michael Wilson & Partners Limited (hereafter “MWP”) for an order, the terms of which are summarised in box 3 in the Application Notice as being “ rescind/revoke/set aside/declare all costs parts of the orders listed below to be null, void, no effect, require regurgitation/payment back to MWP of all monies, release guarantees plus interest/costs and declarations.”
The orders in respect of which the order is sought are identified in box 10 within the Application Notice, and are a variety of orders dating back to 8 October 2010, an order made by Blair J, through to orders made most recently by me on 7 February 2020. The text within box 10 goes on to repeat in substance what appears in box 3, and then continues in a continuation sheet headed “ sections 3 and 10 continued of and to MWP's application notice to rescind and revoke all costs orders of 17 July 2020, which has been listed to be heard on 17 December 2020”, with MWP setting out what it relies upon in support of the application.
Paragraphs 1 through 6 identify either particular provisions within the Civil Procedure Rules, or authorities which include Tibbles v SIG plc [2012] EWCA Civ 518 and Roult v North West Strategic Health Authority [2010] 1 WLR 482. Each of those cases are concerned with the proper scope and effect of CPR Rule 3.1(7) which is the rule upon which MWP rely in relation to the application I referred to just a moment ago.
Subparagraph (7) within the continuation sheet then sets out what is said to be the factual basis for the application to rescind the various costs orders identified which is in these terms:
“The costs fraud and fraudulent conspiracy to injure as to costs … the respondent acting together with what the respondent has disclosed and confirmed are his “fellow stakeholders” (comprising inter alia Messrs MWB Robinson, MR Law Limited … Michael Robinson and Co, Kerman & Co LLP … Kerman & Co Limited … Kerman Legal Services Limited … P.A. Shepherd QC, Shepherd Legal Limited … TI Sinclair, Sokol Holdings Incorporated, DR Slater and others whether acting directly or indirectly) including by issuing, signing and verifying false statements of truth, have committed and perpetuated on MWP as to costs from August 2006 to date.”
This application is described consistently by Mr Wilson as being the cost fraud application, as, for example, is apparent from the title to the bundle in relation to this application, which is entitled “ Index to the bundle of the documents for the hearing on 16 December as to the respondent's cost fraud”, and his description within his skeleton argument in support of this application in which he refers to the application, to which I referred a moment ago, as being “ MWP's application following on from MWP's prior application of 15 January 2020 as to the cost fraud perpetrated by the respondent acting together with Messrs Robinson, Kerman, Shepherd, Sinclair, Sokol and as Temujin Partners since 2006, a result of which MWP has paid £7,188,661, including interest…” see paragraph 3.3 of Mr Wilson's skeleton.
There is another application which has been issued, and which has been formerly listed to be determined in February of next year, being an application issued on 7 December 2020 and is an application by MWP seeking inspection of various original documents referred to by Mr Emmott in his witness statement in these proceedings, for specific disclosure, and for permission to issue and serve witness summons as on a variety of different people, including those that are named in the cost fraud application.
The issue which arises at this stage concerns whether the application should be dismissed summarily without any attempt being made to resolve the factual issues that apparently arise. The basis of this submission is a submission from Mr Emmott contained in paragraph 13 of his skeleton in support of this application to this effect:
“The application should be summarily dismissed because: (1) the allegation of fraud and fraudulent conspiracy are not properly pleaded or sufficiently particularised; (2) the allegations and assertions are not supported by the facts relied upon; (3) the application does not raise even a prima facie case of fraud and fraudulent conspiracy against Mr Emmott; (4) the orders sought in the application is not a proper exercise of the court's discretion under CPR 3.7; (5) the matters raised in the application are matters more properly raised in an assessment of costs in the Senior Courts Costs Office.”
In support of that application, namely that the cost fraud application should be dismissed summarily, Mr Emmott relies in principle on the decision of the Supreme Court in Three Rivers District Council v Governor and Company of The Bank of England, [2001] UKHL 16; [2001] 2 ALL ER 513, and in particular on the judgment of Lord Millett at paragraph 183 and following, where Lord Millett under the heading “pleadings: demurrer” sets out in a series of paragraphs some fundamentals relating to allegations of fraud. What he says at paragraph 183 is this:
“Having read and re-read the pleadings, I remain of opinion that they are demurrable and could be struck out on this ground. The rules which govern both pleading and proving a case of fraud are very strict. In Jonesco v Beard [1930] AC 298 Lord Buckmaster, with whom the other members of the House concurred, said, at p 300:
“It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.””
184 It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence… this means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.”
As Lord Millett observed at paragraph 185, two principles are in play. The first is a pleading issue coupled with the concomitant point that:
“…the function of pleadings are to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”. Such language is equivocal. A similar requirement applies, in my opinion, in a case like the present, but the requirement is satisfied by the present pleadings…”
Lord Millett then turned to the second principle in play, which he described as being “quite distinct” which is that an allegation of fraud must be sufficiently particularised,
In relation specifically to the application under CPR 3.1(7), both parties rely upon Tibbles v SIG plc [2012] EWCA Civ 518; [2012] 1 WLR 2591. Mr Emmott relies in particular upon the summary of general principles applicable to such applications set out by Rix LJ in that case at paragraph 39 and following of his judgment. In so far as is material for present purposes, Rix LJ said of applications under CPR 3.1(7) that:
“The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion.”
He then added:
“… the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since...
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