Princess Folaremi Ajongbola Santos-Albert v Isiguzo Eugene Ochi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Snowden |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWHC 1277 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2017-000298 |
| Date | 23 May 2018 |
[2018] EWHC 1277 (Ch)
Mr Justice Snowden
Case No: CH-2017-000298
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
(District Judge Fine)
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Mr. Andrew Nicol (instructed by Carl Martin Solicitors) for the Appellant/Defendant
Mr. Robert Brown (instructed by Anthony Gold Solicitors) for the Respondent/Claimant
Hearing date: 21 May 2018
Judgment Approved
This is an appeal against an order made by District Judge Fine in the Central London County Court on 14 November 2017. The District Judge refused an application by the Defendant/Appellant, Mr. Ochi, asking her to vary or discharge amendments which she had made under the “slip rule” ( CPR 40.12) to a final charging order which she had originally made on 15 June 2016.
The Facts
The background to the case is that the Claimant/Respondent, Princess Santos-Albert was the tenant of property owned by the Defendant at 144 Verdant Lane, London SE6 (“the Property”) which she occupied between 2011 and 2013. The Property had damp, mould and other disrepair issues and the Claimant brought proceedings in the Central London County Court for damages. After a trial, on 8 April 2015 HHJ Wulwik found in favour of the Claimant and ordered the Defendant to pay general damages of £5,000 to the Claimant, together with two-thirds of the costs of the proceedings to be subject to a detailed assessment if not agreed. HHJ Wulwik ordered the Defendant to pay the damages of £5,000 together with an interim payment of £10,000 on account of costs by 4 pm on 5 May 2015.
The Defendant did not make the payment of £15,000 as ordered. On 15 May 2015 District Judge Silverman made an interim charging order over the Defendant's interest in the Property, charging that interest with payment of £15,000, together with any further interest becoming due and the costs of the application for the interim charging order.
The Defendant sought permission to appeal HHJ Wulwik's order, and pending a determination of such appeal the parties agreed that the hearing of the application for a final charging order should be adjourned. The Defendant's application for permission to appeal was refused by the Court of Appeal on paper on 18 January 2016.
Although a hearing was listed for an oral renewal of the application on 21 July 2016, the Claimant did not agree a further adjournment of the application for a final charging order. At a hearing on 15 June 2016 attended by both parties, District Judge Fine made an order which was originally drawn up in the following terms (“the Original Final Charging Order”),
“1. The charge created by the order made on 15 May 2015 shall continue.
2. The interest of the [Defendant] in the [Property] stand charged with payment of the sum of £15,000 the amount now owing under a judgment or order given on 8 April 2015 by the County Court at Central London … together with any further interest becoming due and £408 the costs of the application.
3. The costs are to be added to the judgment debt.”
The Original Final Charging Order was dispatched to the parties on or about 18 June 2016 and prompted a letter from the Claimant's solicitors to the court on 22 June 2016. That letter stated that the solicitor's attendance notes of the hearing recorded that the order which had been made was that the interim charging order be made final and that the interim charging order be amended to a charge to secure “all sums due under the order of 8 April 2015 and interest”. The letter continued,
“The order as drawn does not include the claimant's costs awarded under the order of 8 April 2015 in the charge. These have been provisionally assessed in the sum of £40,617.26.
We respectfully request that the court exercises its powers under CPR rule 40.12 and amends the order drawn.”
That letter was not copied to the Defendant. It appears that having received that letter, District Judge Fine exercised her power under the slip rule without notice to the Defendant so as to produce an amended final charging order which was dispatched to the parties on 12 July 2016 (“the Amended Final Charging Order”). The Amended Final Charging Order stated,
“1. The Final Charging Order on all sums due under the order of 8 April 2015 and interest. [sic]
2. The interest of the [Defendant] in the [Property] stand charged with payment of the sum of the amount now owing under a judgment order given on 8 April 2015 by the County Court at Central London … together with any further interest becoming due. The Defendant shall pay the Claimant's fixed costs in the sum of £408.
3. The costs are to be added to the judgment debt.”
On 11 July 2016 a final costs certificate was issued in respect of the costs order of HHJ Wulwik in the sum of £42,717.86. The Defendant's application for permission to appeal was finally dismissed by the Court of Appeal on 17 November 2016.
The Defendant still did not pay any of the sums which had been ordered to be paid by him, and so, about 10 months later, on 12 May 2017, the Claimant issued a Part 8 claim form seeking an order for sale of the Property. The brief details of the claim were,
“1. On 15 June 2016 in claim number two LB 02153 in the County Court at Central London the Claimant was granted a final charging order to secure the sums due and interest under the judgment of 7 April 2015 and costs over the [Defendant's] interest in the [Property].
2. No payments have been made by the [Defendant] in respect of the judgment debt and costs and the balance due from the [Defendant] as at 28 April 2017 is £55,997.44 with interest accruing at a daily rate of £10.55.
….
4. The Claimant seeks an order for sale of the Property in the terms set out in the enclosed draft order.
5. Costs.”
The Part 8 claim was supported by a witness statement that suggested, by inference rather than expressly, that the Amended Final Charging Order charged the Defendant's interest in the Property with the full amounts then owing under the judgment and order of HHJ Wulwik, including the amount of £42,717.86 certified due in respect of costs. On any view the evidence did not seek to suggest that the amounts secured by the Amended Final Charging Order did not include that amount.
As well as indicating an intention to contest the Part 8 claim for an order for sale of the Property, the Defendant issued an application on 12 July 2017 seeking that the amendment to the Original Final Charging Order of 15 June 2016 should be set aside and that such charging order should be discharged.
The evidence in support of the application complained that the Claimant's solicitors had asserted in the Part 8 claim that the sum due under the Amended Final Charging Order was £55,997.44. The evidence stated that the Defendant was challenging the Part 8 claim on the basis that the Claimant was not legally entitled to claim costs by reason of the fact she was a legally aided party and further that the Claimant's solicitors had sought to claim for costs of a legally aided party at private inter partes rates. The witness statement continued,
“The Defendant is currently in the process of completing a re-mortgage of the property and is able to undertake to pay the correct sum charged under the Original Final Charging Order into the court without prejudice to his legal rights in relation to the disrepair claim with respect to which the 8 April 2015 order was made.”
Before that application could be heard, the Defendant paid the sum of £55,997.44, together with further legal costs of £8,000, to the Claimant. The Defendant's Skeleton Argument for the appeal suggests that this payment was forced upon the Defendant because the proposed mortgage lender had indicated that the offer of finance to the Defendant would be withdrawn if the entry in respect of the Amended Final Charging Order was not removed from the title to the Property at the Land Registry, and the Claimant had not agreed to that without being paid the full amount claimed.
The application of 12 July 2017 came before District Judge Fine on 14 November 2017. After hearing argument from solicitors for both sides the District Judge gave a short judgment refusing to vary or discharge the Amended Final Charging Order. After setting out the background, she stated,
“4. I have the note that I made of the order on 15 June 2016. It notes that I heard the solicitor for the claimant and the defendant in person. The court was satisfied as to service and the order made was a final charging order on all sums due under the order of 8 April 2015 and interest. The initial order, as drawn by the court staff and sent to the parties on 18 June 2016, did not reflect the order made in that it referred to the sum of £15,000, which was not the wording of my order. The claimant therefore apparently wrote to the court seeking the wording to be amended to reflect the order made and the order was, accordingly, amended. Today the defendant seeks to vary that order and/or have the order discharged.
5. With regard to the variation of the order, the order as amended under the slip rule reflects correctly the order made. Any variation at this stage would have to be by way of appeal.”
District Judge Fine then considered what to do with the Amended Final Charging Order. She noted that the Claimant had accepted that the costs determined under the final costs certificate together with the £5,000 damages and interest and costs had been paid. The District Judge therefore ordered that the Amended Final Charging Order be discharged. She also ordered the Defendant to pay the Claimant's costs of the application to be assessed on the indemnity basis if not...
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