Michael Wilson & Partners Ltd v John Forster Emmott
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] EWHC 1005 (Comm) |
| Docket Number | Case No: CL-2010-000804 |
| Court | Queen's Bench Division (Commercial Court) |
[2023] EWHC 1005 (Comm)
HIS HONOUR JUDGE Pelling KC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2010-000804
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Stephen Innes (instructed by Michael Wilson & Partners) for the Appellant
Mr Emmott appeared in person.
Hearing dates: 3 March 2023
Approved Judgment
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.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling KC:
This is the hearing of an appeal by Michael Wilson & Partners Limited (“MWP”) from an order of Master Whalan made on 9 November 2019, on the application of Mr Emmott, by which he set aside a default costs certificate issued on 12 February 2019, on the application of MWP. Master Whalan refused permission to appeal and directed that any application for permission to appeal be made to a judge of the commercial court.
On the 17 February 2020, MWP issued an appellants notice that was referred to Stewart J on the 16 July 2021. He directed that the appeal be transferred to the judge in charge of the commercial court. That judge then directed the application for permission to appeal be listed before me. It was listed before me on the 16 November 2021. Mr Emmott did not appear and was not represented at the permission to appeal hearing. I granted permission to appeal on ground nine but refused permission on all other grounds for the detailed reasons that I gave at the time.
The grounds of appeal, including ground nine, have been settled by Mr Michael Wilson. They were prolix and unnecessarily tendentiously expressed. It is not necessary or desirable therefore that I set out the text of ground nine verbatim. In summary, it asserts that the Master was wrong to set aside the default costs certificate on the ground that it had been sought and granted without jurisdiction because, by the time of the hearing before the Master, it was no longer open to Mr Emmott to argue that the default cost certificates should be set aside because Mr Emmott had by his witness statements of the 1 May 2019 and 15 July 2019 elected to set off against the sums apparently due from him to MWP under the default cost certificate part of the sums due to Mr Emmott from MWP under the judgment giving effect to the arbitral awards and thereby he had waived or otherwise lost his right to seek the set aside of the default costs certificate. In giving permission to appeal on this ground alone, I commented that whilst I could not fairly or safely conclude this point was unarguable on the material put before me, there were powerful arguments available to Mr Emmott that, until a set off had actually taken effect either by agreement, judgment or arbitral award, there was nothing to preclude him from asserting set off whilst at the same time seeking to have the default cost certificate set aside as having been obtained without jurisdiction. As I said in my judgment I was prepared to grant permission only “… with some significant hesitation…” and only because MWP's counsel had not considered the impact of, and, therefore, could not assist me in relation to those issues. None of the relevant case law (the most recent of which I refer to below) was produced at the hearing of the application for permission to appeal. Against that background, I now turn to the facts relevant to this appeal.
This appeal has its factual origin in a dispute that arose many years ago between MWP and Mr Emmott, which led to an arbitration between the parties that took many years to resolve. In the course of the arbitral proceedings, the tribunal ordered Mr Emmott to pay MWP's costs in relation to two procedural applications and part of MWP's costs in relation to two other procedural applications. Those orders were made between November 2007 and February 2009. The tribunal ultimately determined liability by an award published in February 2010 and determined quantum by an award published in September 2014 and amended in November 2014.
On the 18 January 2019, MWP issued a notice of commencement of detailed assessment proceedings for the arbitral costs referred to above. It exhibited a bill which claimed costs in the total sum of £158, 359.34. On the 19 January 2019, MWP served that notice on Mr Emmott. Mr Emmott failed to serve points of dispute by the stipulated deadline of 11 February 2019. On 12 February 2019, the claimant applied for and obtained a default cost certificate in the total sum £158,505.34. On 18 February 2019, Mr Emmott issued his application to set aside the default certificate supported by his witness statement, also dated 18 February 2019.
On 26 February 2019, MWP served Mr Emmott with a statutory demand in relation to the sums apparently due under the default costs certificate even though Mr Emmott had issued and served his application to set aside the default costs certificate. On 13 March 2019, Mr Emmott applied to set aside the statutory demand by an application issued in the County Court at Brighton, supported by his witness statement, also dated 13 March 2019. As will be apparent from what I've said so far, the statutory demand was served by MWP eight days after Mr Emmott had issued his application to set aside the default cost certificate and was thus obviously inappropriate and can only have had the effect of needlessly vexing Mr Emmott. It is the sort of conduct that has plagued this litigation for years, has led to sustained criticism of MWP's conduct by almost all courts up to and including Court of Appeal level and has resulted in an extended Civil Restraint Order being made against MWP.
On 7 November 2019, the application to set aside the default costs certificate came before Master Whalan who set aside the default cost certificate pursuant to CPR 47.12(1). He did so on the basis that: (a) the tribunal had not failed or refused to determine costs and MWP's submissions to contrary effect were wrong and unarguable and therefore the court had no jurisdiction to assess costs applying s.63(4) of the Arbitration Act 1996; (b) MWP was wrong to assert that s.63 of the 1996 Act was of no application because the tribunal had ceased to function since (i) in fact the tribunal had not ceased to function as MWP alleged but (ii) even if it had, that did not mean that s.63 ceased to apply; and MWP had not complied with the notice requirements imposed by the terms of s.63(4) of the 1996 Act. Master Whalan then considered and rejected the waiver arguments advanced by MWP at paragraphs 23 – 24 of his judgment in these terms
“23. The Claimant, in the course of written oral submissions, has raised a number of other arguments, many of which I found at best to be tangential and at worst to be wholly irrelevant, but I am going to deal with two which at least have some arguable basis. The first is the question of set-off. Mr Wilson submits that, in the course of parallel proceedings in the Commercial Court, the Defendant had purported to set off his liability set out in the Default Costs Certificate. Thus, argues Mr Wilson, the bill has been effectively paid, so there is no outstanding default costs certificate and no certificate to set aside. Mr Emmott, in response, first denies that he has purported to set off the sums in the Default Costs Certificate — there is, in other words, a dispute of fact — and second argues that in any event that this is irrelevant to this court's jurisdiction and consideration of the application to set aside the Default Costs Certificate.
24. The issue...
To continue reading
Request your trial