SIMON HALABI v FIELDMORE HOLDINGS Ltd & OTHERS

JurisdictionEngland & Wales
JudgeMR JUSTICE RIMER
Judgment Date10 May 2006
Neutral Citation[2006] EWHC 1965 (Ch)
CourtChancery Division
Docket NumberCase No. 000187
Date10 May 2006

[2006] EWHC 1965 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Rimer

Case No. 000187

Between:
Simon Halabi
Claimant
and
Fieldmore Holdings Limited & Others
Defendants

MR JONATHAN EVANS (instructed by Ashurst Morris Crisp) appeared on behalf of the Claimant

MR DOMINIC CHAMBERS (instructed by Mr John Hume) appeared on behalf of the four interpleader defendants/applicants

No of Folios in transcript —50

No of words in transcript —3,607

MR JUSTICE RIMER
1

Two application notices are before me, both issued by four interpleader defendants in proceedings in which Simon Halabi is the claimant, and Fieldmore Holdings Limited is the first of six defendants. The interpleader defendants are: Brian Rhatigan, Patrick O'Sullivan, Montoure Limited, Anthony Rhatigan and Folio Homes Limited, although Montoure is not an applicant, for the good reason that its status is now that of a struck-off company.

2

The relief sought in the first application notice, which was issued on 2 nd May 2006, is an order that Mr Halabi's claim be struck out for a failure on his part to serve his witness statement by 24 th March 2006, as ordered by Lindsay J at a case management conference on 1 st March 2006. The alternative relief sought in an amended application notice issued on 5 th May 2006 is an order that Mr Halabi be debarred from serving his witness statement out of time without leave of the court and, if such leave is granted, on terms that he provides security for the applicants' costs.

3

It is now not disputed that there is no question of striking the claim out, and Mr Chambers, who appears for the applicants, does not seek that relief. It is only relief of the alternative nature that is now sought, and indeed the only matter of issue between the parties is whether, on the footing, as is not disputed, that Mr Halabi should be given permission to use his witness statement at the trial, the making of that order should be subject to a condition that he provides security for the applicants' costs.

4

The reason for the changed nature of the relief now sought is that on 3 rd May, although prior to the service of the first application notice, Ashurst Morris Crisp, solicitors for Mr Halabi, asked if witness statements could be exchanged. Thereafter, at about 2pm —albeit some five and a half weeks late —they delivered Mr Halabi's statement to the applicants' solicitor, Mr John Hume, who delivered the applicants' witness statements to Ashursts by way of exchange. It is in those circumstances that the applicants no longer say that Mr Halabi's claim should be struck out. But they do say that it is not permissible for him to ignore court orders in the way they say he has, and they say that, if he wishes to rely on his evidence, he must first obtain permission, and they say further that it is appropriate to impose a condition on him under CPR Part 3.1(3). The proposed condition is the payment into court of a sum by way of security for the applicants' costs of the proceedings.

5

The general background to this litigation is as follows, although I do not claim to understand the detail underlying it, which the evidence does not attempt to explain. The action concerns the proceeds of the sale of some commercial properties known as "the Fiscal Portfolio", which was sold by the first defendant, Fieldmore. The proceeds are held in a solicitors' joint account, and are frozen pursuant to an order that apparently I made over six years ago on 12 th April 2000. The sum in question amounts to approximately £2.6m. Mr Halabi claims it all. The applicants say that he is not entitled to any of it, since it is all required to pay various parties' costs in acquiring the properties, including interest charges which continue to accrue. This is the issue which is being tried between Mr Halabi and the applicants. The trial is due to start on 4 th December 2006 and has, I am told, an estimated length of about a week.

6

Mr Hume has made two witness statements in support of the applicants' successive application notices. The first was made on 2 nd May, before the late production of Mr Halabi's witness statement. Mr Hume summarised the procedural position before the applicants came onto the scene as interpleaders, his evidence being based on information derived from S J Berwin, the solicitors who act for Fieldmore. He explained that Mr Halabi obtained a lengthy time for the service of his Points of Defence in August 2004, although that does not of itself suggest any breach of the rules. He says that Mr Halabi failed to serve a disclosure list in September 2004, and only served it in March 2005 without first obtaining any extension of time. Mr Evans, however, for Mr Halabi, says that is not in fact the full picture, since although Mr Evans admits that Mr Halabi was at fault in not serving the disclosure statement in September 2004, he says that in December 2004 a summary judgment application was made, at which time fresh directions as to disclosure were made by the Master, and the essence of Mr Evans' point on that is that the failure on the part of Mr Halabi with regard to disclosure at that stage is not as serious as Mr Hume suggests in his evidence.

7

Mr Hume goes on to say that Mr Halabi was some five weeks late in serving evidence for some interim application, which Mr Hume does not further identify. That may perhaps be the summary judgment application which Mr Evans referred to, and it may be that Mr Hume cannot identify that matter further because he does not know the details. Precisely what the facts are in relation to that I do not know.

8

Then Mr Hume speaks of the position since the involvement of the applicants, during which time he says Mr Halabi has been consistently late in complying with court orders. He was four and a half weeks late in serving Points of Claim that were ordered by Warren J at a case management conference on 27 th June 2005, and Mr Hume says that it took the obtaining of an "unless order" from Master Price on 13 th September 2005 to provoke him into serving them. Mr Hume says Mr Halabi failed to serve his list of documents by December 2005 when he was ordered to do so. At the case management conference on 1 st March 2006 a final order was made against him requiring him to serve it by 6 th March. Mr Halabi complied with that order on 3 rd March. I should say that certain of these events are explained slightly differently in the evidence in answer to Mr Hume's evidence, to which I shall shortly come.

9

At the same case management conference Lindsay J also ordered an exchange of witness statements by 24 th March. Under Warren J's order, Mr Halabi had in fact been due to serve his witness statement by 13 th January 2006. Mr Hume's evidence is that he had been ready since 27 th February 2006 to serve his client's witness statement, from which I...

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    ...a weak case. The weakness of a party's case will ordinarily be relevant only where he has no real prospect of succeeding.” 16 In Halabi v Fieldmore Holdings Ltd [2006] EWHC 1965 (Ch) Rimer J. (as he then was) took the view that the court could properly exercise its jurisdiction to impose a ......
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    ...Plc v Timonthy Horgan, Hill Samuel Bank Ltd.2; Kotia v Dewhirst 3[2000] C.L.Y. 4073; Simon Halabi v Fieldmore Holding Ltd. and others [2006] EWHC 1965 (Ch)4. 15 In two (2) of these cases the Court permitted witness statements that were not exchanged within the specified time to be served an......
  • Shagang Shipping Company Ltd v HNA Group Company Ltd
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    ...relief being granted." 12 And then at paragraph 19, having referred to the earlier cases and to views expressed in a case called Halabi v Fieldmore Holdings Ltd [2006] EWHC 1965 (Ch), he says: "I do not think that the power to attach a condition to an order can be exercised only if there is......
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    ...v G (1985) 2 AER 229 (adopted in Michael Dufour and others v Helenair Civ. App. No. 4 of 1995 2 1999 WL 249899 3 [2000] C.L.Y. 407 4 [2006] EWHC 1965 (Ch) 5 See 2 above 6 See 3 above 7 See 4 above 8 Civ. Case No. 0084 of 1999 9 [2001] 3 All ER 784 10 Civ. App. No. 15 of 2005 11 See 9 above......

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