Nihal Mohammed Kamal Brake v The Chedington Court Estate Ltd
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 08 October 2021 |
| Neutral Citation | [2021] EWHC 2700 (Ch) |
| Docket Number | Case No: F00YE085 |
| Court | Chancery Division |
[2021] EWHC 2700 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: F00YE085
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Stewarts Law LLP for The Chedington Court Estate Ltd
Mrs Nihal Brake appeared on her own behalf and that of Mr Andrew Brake and Mr Tom D'Arcy
Application dealt with on paper
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.
This is my ruling on another procedural issue that has arisen in this long-running litigation. On 5 August 2021, at the combined pre-trial reviews for the so-called ‘Possession Trial’, which was heard in September 2021, and the ‘Eviction Trial’, which is due to begin on 12 October 2021, I directed (at [10] of my order) that the Guy Parties have permission to engage an external transcriber to provide transcription services, which should be available both to the Court and, if they were willing to bear half the cost, to the Brakes.
In fact, for the Possession Trial, the Guy Parties made the daily transcript available to the Brakes at a far lower cost than the one half provided for by my order. This was a contribution of £1000 plus VAT to the total cost borne by the Guy Parties. However, it appears that the Guy Parties were unwilling to offer the same concessionary rate in relation to the current trial (Eviction). In an email dated 22 September 2021 to the Brakes, their solicitors, Stewarts, asked the Brakes if they wished to share the cost of the transcription service, paying half (as provided in my order). Mrs Brake's response on 24 September was to ask if they could “do the same deal again, ie £1000 plus VAT”.
On 27 September Stewarts wrote:
“Our clients were willing to compromise in respect to the Possession Proceedings brought by them but they are not willing to compromise in relation to the Eviction Proceedings commenced by you, your husband and your son in which our client has incurred very significant costs. Moreover you have recently accepted you have access to the very substantial funds in your pensions and so there is no good reason that you are unable to meet the costs of transcription on a 50/50 basis as provided for in the PTR order.”
By email dated 30 September 2021 addressed to the court and sent to me, Mrs Brake said that
“Over the past two months and certainly since the August order was made, you have ordered us to pay nearly £200,000 to Stewarts or into court. Clearly as advocate I need to be able to see the transcript.”
Then she asked me whether I would “consider asking Stewarts to let me pay £1000 plus vat as before?” In essence, therefore, she is seeking a variation of the order I made at the pre-trial reviews.
CPR rule 39.9 deals with the transcription of proceedings. This relevantly provides:
“(1) At any hearing, whether in the High Court or the County Court, the proceedings will be tape-recorded for digitally recorded unless the judge directs otherwise.
(2) No party or member of the public may use unofficial recording equipment in any court or judge's room without the permission of the court. …
(3) Any party or person may require transcript or transcripts of the recording of any hearing to be supplied to them, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript. …
[…]
(5) At any hearing, whether in public or in private, the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court.”
Where a party wishes (or the parties wish) to engage a transcriber for the purposes of making a live or daily transcript for its (or their) purposes, this will almost certainly involve the transcriber making a private recording as well, so that the transcript can be checked before release to the client(s). Under CPR rule 39.9(2) that requires the permission of the court. The relevant application form is Form EX107OFC (where “OFC” stands for “off framework consent”). Failure to obtain such consent before making the recording may involve a breach of section 9 of the Contempt of Court Act 1981 and amount to a contempt of court: see eg JR & B Farming Ltd v Hewitt [2021] EWHC 1704 (Ch).
In the present case the court by paragraph 10 of the order of 5 August 2021 directed that transcription services engaged by the Guy Parties be made available to the Brakes on certain terms. This was not contentious. Indeed, Mrs Brake agreed to it expressly (at internal pages 120–121 of the PDF transcript). The Brakes now wish this provision to be varied, on the basis that they are impecunious, need the transcript in order to be able properly to participate, and the Guy Parties allowed them a concessionary rate in the previous trial.
The Guy Parties say that there has been no material change since 5 August, and that Brakes have been able, when required to do so, to pay for other things, including the...
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