R v The Common Professional Examination Board (ex parte Sally Mealing Mcleod)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HIDDEN |
| Judgment Date | 19 April 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0419-15 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/2588/97 |
| Date | 19 April 1999 |
[1999] EWCA Civ J0419-15
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE)
Royal Courts of Justice
The Strand
Mr Justice Hidden
CO/2588/97
The Applicant appeared in person
MR N GARNHAM (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Monday 19th April 1999
This is an application by the applicant, Ms Sally McLeod, and also an application by the respondent, the Common Professional Examination Board, each seeking an order that monies paid into court, pursuant to the order of Clarke LJ dated 18th December 1998 as security for the respondent's costs, be paid out.
The money was paid in by the applicant as security for the respondent's costs. She applies for the sum in court to be paid out to Lloyds Bank Plc, together with the interest incurred on the money. The respondent, on the other hand, seeks an order that the monies be paid out to the respondent or, alternatively, for an order imposing a charge on the said money. Each side equally seeks an order for costs.
On 18th February 1999, the Court of Appeal ordered that the application for the payment out of monies in court, namely £6,000, together with interest accrued thereon, be remitted to a High Court judge. Accordingly I have heard two applications for payment out.
The history of this matter is a little involved. Essentially the applicant began proceedings for leave to apply for judicial review of a decision of the respondent and the Bar Council on 15th July 1997. On 4th November 1997, Sedley J refused that application. Ms McLeod appealed that decision to the Court of Appeal, who on 19th October 1998 gave her leave to appeal and to adduce further evidence. On 18th December 1998 the respondent applied for, and the court ordered, security for costs against the applicant in the sum of £6,000.
Before the appeal came on, fresh evidence had emerged which was of crucial importance in the question of the appeal. The applicant in September 1997 had begun a course at the University of the West of England for a post-graduate diploma in law. The Bar Council thereafter decided that if she were to be successful in that course, they would certify her success in the course as counting towards pre-qualification training for the Bar, and she would be allowed to proceed with her application for a place on the Bar vocational course. As a result of that decision, the appeal became academic and was withdrawn by consent. There was no order as to costs, save that the respondents were to pay the applicant's costs from the time of the granting of leave to appeal on 19th October 1998 to the date of the hearing of 18th February 1999. No order was made as to the respondent's costs in the appeal.
However, at that time there were already extant two orders for costs against the applicant in relation to proceedings she had issued against the respondent. No sums had been paid in relation to those orders, and the respondents were at the time of the date of the appeal hearing on 18th February seeking repayment of those costs. The costs arose because in December 1992 the applicant had begun proceedings against Middlesex University, Wolsey Hall and the respondent. Those proceedings were dismissed on 25th November 1993. His Honour Judge Zucker on that date made an order against the applicant that she pay the respondent's taxed costs. Those costs amounted to £7,295.43, less a sum of £803.04 made up of taxed costs payable to Ms McLeod pursuant to an order dated 13th November 1994, and assessed costs payable to her under an order of District Judge Bilmes dated 17th June 1994. The balance payable to the respondent was therefore £6,492.39, together with interest at 8 percent from 25th November 1993 to 19th February 1999, which amounted to the sum of £2,717.91. There was also a sum of £3,773.68 under orders dated 27th November 1995, an interpleader, and 13th December 1995, an appeal.
There was also in existence another certificate of taxed costs dated 5th June 1997 with a remedy over against the applicant in the sum of £3,773.68. The interest thereon at 8 percent was £952.83 and thus the balance on orders for costs owed by the applicant to the respondent was £13,936.81.
The respondent therefore seeks under those two orders payment out of the sum of £6,000 in court to the respondent.
The applicant, however, had borrowed the sum of £6,000 from Lloyds Bank Plc. With my leave she filed a supplementary affidavit this morning to deal with the circumstances under which she came to apply for the loan and the arrangements she made with the bank's Business Banking Manager. She paid the banker's draft provided by Lloyds Bank for that sum into the Public Trust Office on 21st December 1998. She now seeks an order for the repayment out of the Public Trust Office of that sum of £6,000, plus interest, to Lloyds Bank Plc.
The basis for that claim is that the applicant argues that, on the principles set out in Barclays Bank Limited v Quist Close Investments Limited [1968] 3 All ER 651, a resulting trust arises in favour of the provider of money when provided for a particular purpose only and that purpose fails. She relies on Quist Close,, where it was found that the respondents were entitled to recover a sum of £209,719, which they had advanced by loan, from the appellants since, as between the respondents and Rolls Razor Ltd, the terms on which the loan was made were such as to impress on the money a trust in the respondent's favour in the event of the dividend not being paid.
As Lord Wilberforce said in his speech at page 654:
"The mutual intention of the respondents and of Rolls Razor, Ltd, and the essence of the bargain, was that the sum advanced should not become part of the assets of Rolls Razor, Ltd, but should be used exclusively for payment of a particular class of its creditors, namely, those entitled to the dividend. A necessary consequence from this, by process simply of interpretation, must be that if, for any reason, the dividend could not be paid, the money was to be returned to the respondents: the word 'only' or 'exclusively' can have no other meaning or effect.
That arrangements of this character for the repayment of a person's creditors by a third person, give rise to a relationship of a fiduciary character or trust, in favour, as a primary trust, of the creditors, and secondarily, if the primary trust fails, of the third person, has been recognised in a series of cases over some 150 years."
She also relies on what is set out in Carreras Rothmans Ltd v Freeman Matthews Treasure Ltd (in liquidation) and Another [1985], 1 All ER 155. The applicant argues that Lloyds Bank Plc provided the £6,000 for the specific purpose of securing the respondent's costs of an appeal. She argues that that purpose failed in that no costs were awarded to the respondent. Accordingly, there was a resulting trust in favour of Lloyds Bank Plc and the bank were entitled to have their £6,000 plus interest returned to them.
That is the main argument of the applicant, but she argues in the alternative that the respondent's application must fail in that her costs of providing the security would be well in excess of the sum claimed by the respondent, the total cost of the borrowing being in excess of £9,000 and, further, that no costs are due or outstanding from the applicant by reason of the applicant's right of set off.
The respondent, on the other hand, argues that, where there is money in court held to the account of a debtor, the High Court has power to make an order for payment out or to make a charging order in favour of a High Court judgment creditor. The respondent relies on order 50, rule 9A/33 and the case of London County Council v Monks [1959] 1 Ch 239. At page 243 in the judgment of Danckwerts J, as he then was, it is said:
"Money in the hands of the Paymaster General at the bank would seem to me to be in the same position as any other bank account; but there is a line of authorities to which I have been referred which show that in the case of a fund in court, as it is commonly called, at any rate in the case of a High Court judgment, the court would direct payment out or make a charging order in favour of a High Court judgment creditor. Those cases are Brererton v Edwards and In re Prior, the latter case being the case of a fund which, I think, had been paid to the official receiver in bankruptcy.
The real basis of those cases seems to me to be that, where the court has the fund under its own control, as in the case of a fund standing to the credit of some account of the Paymaster-General, the Paymaster-General being the officer of the High Court and all the judges of any Division of the High Court being judges of that court, the judges will enforce a High Court judgment by directing their officer to pay out the money or by making a charging order on the fund in question, so that the judgment creditor shall not be defeated with regard to satisfaction of the judgment."
The situation in that case was complicated by the fact that the equivalent section which provided for the transfer of county court judgment to the High Court (section 136 of the County Courts Act 1934) had been repealed, and therefore the court had to take the position as it was in the absence of section 136.
Danckwerts went on to say at 245 that:
"It seems to me an unfortunate result because, of course, the judgment ought to be satisfied if the debtor has a fund".
The respondent argues that there is a similar power where a county court judgment has been transferred to the High Court for...
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