Scott Halborg v Albert Halborg
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWHC 1621 (QB) |
| Docket Number | Appeal Nos: QB-2021-000180, QA-2021-000222, QA-2021-000223, QA-2021-000231, QA-2021-000240, QA-2021-000258, QA-2021-000270, QA-2021-000292, QA-2022-000027 And QA-2022-000041 & QA-2022-000051 |
| Court | Queen's Bench Division |
[2022] EWHC 1621 (QB)
Mr Justice Cotter
Appeal Nos: QB-2021-000180, QA-2021-000222, QA-2021-000223, QA-2021-000231, QA-2021-000240, QA-2021-000258, QA-2021-000270, QA-2021-000292, QA-2022-000027 And QA-2022-000041 & QA-2022-000051
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT LUTON & OXFORD
DECISIONS OF HHJ BLOOM & HHJ CLARKE
CLAIMS F00LU431 & G01LU395
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Ashdown (instructed by Deals & Disputes Solicitors) for Claimant/Appellant 1 & 2
Stephen Taylor (instructed by Hollingsworth Solicitors) for Defendant/Respondent 1 & 2 Claim F00LU431
Michael Ashdown (instructed by Deals & Disputes Solicitors) for Claimant/Appellant 1 & 2
Benjamin Wood (instructed by Reynolds Porter Chamberlain LLP) for Defendant/Respondent 1 & 2
Andrew Nicol (instructed by Mills & Reeve) for Defendant/Respondent (3) Claim: G01LU395
Hearing dates: 09–10 June 2022
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.
Introduction
This is the application for permission hearing within what was a combined group of 19 appeals in eight (formerly nine) notices and is now 24 appeals in 11 appeals notices. The applications mainly relate to case management decisions in two county court actions.
Originally there were some 169 grounds of appeal. After a process of reflection as required by my order and the paring down of the prolix and obviously unmeritorious grounds by the Appellant, there are now 86 grounds of appeal in respect of 17 orders. Appellant Notice 9 was not pursued.
On behalf of the Appellants, Mr Ashdown filed a 66 page skeleton argument dated 11 th of March 2022. He has also filed a 13-page, supplementary skeleton argument dated 31 st May 2022, which deals with their 10 th and 11 th Appellant's Notices; thus there are 79 pages of skeleton argument on behalf of the Appellant. There are 8 volumes within the appeal bundle running to some 2,527 pages; excluding two lever arch files of authorities. As Mr Wood correctly observed
“ the sheer volume of material before the Court – and the number and extent of the issues sought to be raised by the applications – makes it impossible to identify what is strictly necessary to have pre-read and what else can safely be disregarded unless it is referred to during the course of submissions.”
Given the task faced by the Court in dealing with these permission applications; their sheer breadth meant they could not be dealt with efficiently on paper. As a result, I listed them initially for an oral hearing of one day for the first nine appeal notices and took the unusual step of ordering the attendance of the Respondents. When the final two appeal notices were filed, I ordered that they be determined immediately after the first nine on the following day.
The applications for permission to appeal, even after they have been cut down by half, are out of all possible proportion to the issues in the claims. That is not to suggest any criticism of Mr Ashdown; quite the reverse. I am very greatly indebted to him for the clarity and presentation of his most helpful written and oral submissions. He has also helped by paring down the original grounds. What the Court would have faced without his assistance does not bear much thought. The taking of a wide range of points accompanied by a large amount of documentation is, I have formed the view, undoubtedly part of an established pattern of behaviour of the Appellant, Mr Halborg. Over the last three years the parties and the Court have faced multiple applications with prolix statements accompanied by voluminous documentation.
Each and every element of the appeals in respect of which permission is sought relates to procedural, rather than substantive, aspects of County Court claims, principally F00LU431 which was issued as long ago as March 2019 (so well over three years ago), and which has become known as the “Trust Claim” and the case of G01LU395 what has become known as the “Lawyers' Claim”, issued in December 2020; so, one and half years ago. These claims have spawned a whole constellation of satellite issues that have occupied a large amount of Court time. I have lost count of the number of applications and hearings in both claims. The Trust Claim itself has not even progressed as far as completion of disclosure and the Lawyers' Claim not as far as a strike out application before a defence is filed.
Just these bare facts lead inexorably to the conclusion that something has gone very badly wrong with the conduct of the litigation. I have never experienced anything remotely like the failures in these two cases to progress a county court claim despite nearly 12 years as a Designated Civil Judge across two regions. After careful consideration of these appeals and what has taken place on the tortured path to this point I have been driven to the conclusion that Mr Halborg, a solicitor, indeed a solicitor advocate, has long forgotten the requirement on all parties to litigation to help the Court further the overriding objective.
It is not without very good reason that the overriding objective of dealing with claims justly and at proportionate cost (that second element having been long since lost in the progress of this litigation as has the requirement to progress expeditiously) requires ensuring, so far as is practicable, that a claim has allotted to it an appropriate share of the Court's resources whilst taking into account the need to allot resources to other cases. This litigation has already taken very far more of the Court's valuable and finite resources than it was properly entitled to take and, as I have indicated, in the Trust Claim it is not even far down the normal path to a final hearing.
These matters having been set out it is necessary to state that each appeal, and each ground, required to be, and has been, considered in terms of its individual merits. There can be no broad-brush approach. However, that does not mean the overall history of the litigation was not relevant as a legitimate factor which could be taken into account in the exercise of discretion in respect of some of the orders made and also as regards the making of a civil restraint order.
History of the underlying disputes
The Appellants are Mr Halborg (who is a solicitor) the son of Mr and Mrs Halborg (the Defendants in the Trust Claim), and his company, Halborg Limited. They are represented by Deals & Disputes Solicitors, of which Mr Halborg is a partner and majority owner. In an email of 14 th of May 2020 sent by Deals & Disputes Solicitors to the County Court at Luton Mr. Halborg is described as “ our fee earner (who is also the principal witness and instructing client)”. Mr Halborg also acted as the advocate at certain of the hearings, the orders made at which are the subject of some of the applications for permission to appeal.
Mr Halborg has brought an action against his parents within which he alleges that there was an “express shared understanding”, that some of the fruits of a professional negligence action brought by his parents and Halborg Ltd (the second Claimant in the Trust Claim) were to be held on trust for him or Halborg Ltd. His parents deny this. They have brought a counterclaim. This is the action that has become known as the Trust Claim. The matters are not unduly complex but consistent with his approach to most aspects of the litigation, Mr Halborg's reply and defence to counterclaim alone runs to some 45 pages.
The First and Second Defendants in the Lawyers' Claim are Hollingsworths Solicitors Limited and its director, Gregory Hollingsworth. They act for Mr and Mrs Halborg in their defence of the Trust Claim. They are described as the “Solicitor Defendants”. The Third Defendant in the Lawyers' Claim is Mr Stephen Taylor, who (as a self-employed barrister) has represented Mr and Mrs Halborg in the Trust Claim. Mr Taylor is described as the “Barrister Defendant” within the Lawyers' claim. In what at first blush seems an unusual claim, Mr Halborg alleges that the Solicitor Defendants and Barrister Defendant are liable in knowing receipt of sums paid to them by Mr and Mrs Halborg for their fees in connection with their defence of the Trust Claim. The Solicitor Defendants and the Barrister Defendant have an outstanding application to strike out the claim against them.
There is a third action in which Mr Halborg has brought a claim against his mother for the return of documentation left at her house in happier times. Her Honour Judge Bloom reserved case management of the Trust Claim and the Lawyers' Claim to herself.
As I have already stated, the Trust Claim is not ready for trial; but it was, somewhat optimistically, listed for 4 days before Her Honour Judge Walden-Smith. I do not know on whose order or instruction this was listed (and I cannot properly enquire of the Judges likely to be concerned) but it was an obviously sensible decision. Her Honour Judge Bloom had faced an application for recusal on the grounds of bias and apparent bias, which she had dismissed. There are permission to appeal applications against the relevant orders. In my judgment, it is overwhelmingly likely that if she presides over the trial the allegations will re-surface to a greater or lesser degree, with more applications for...
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