The Estate of Euan McIntyre Lindsay (Deceased) v Outlook Finance Ltd ((in Liquidation))

Hearing dates: 14, 15, 16 and 28 October 2025

Post-judgment written submissions: 27 November, 2 and 5 December 2025

Approved Judgment (2) on Consequential Matters

This judgment was handed down remotely at 10.00am on 12 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is my second judgment in this action, dealing with consequential matters following my main judgment given on 26 November 2025; see Lindsay v. Outlook Finance Ltd [2025] EWHC 3100 (KB). The action was brought to set aside a 2014 judgment obtained by fraud. The same abbreviations and definitions are used here as in the main judgment. The judgment sought to be set aside is that of His Honour Judge Bird, sitting in Manchester, in Estate of Euan Linsday (deceased) et al v. Outlook Finance Ltd et al (unpublished, transcript of 2 June 2014) ( the Manchester judgment).

The claimants ( the Lindsays) are from a family of Scottish dairy farmers who had a farm in Scotland and another in Cumbria. The claimants and associated entities obtained loan funds from the first defendant ( Outlook) secured on the two farms and certain livestock. Outlook alleged defaults and appointed the second defendant ( Mr Butcher) in 2012 as “ LPA receiver” in relation to the farm in Cumbria and as agent to take possession of the livestock.

In my main judgment, I decided that the Manchester judgment must be set aside and a retrial ordered because of a fraud on the court perpetrated by one Derek Fradgley, now deceased. The detailed reasoning is in the main judgment and I do not repeat it here. I further decided, again for the reasons stated in the main judgment, that the Manchester judgment should also be set as against the Mr Butcher, although it is not alleged against him that he was involved in or complicit in the fraud.

The following consequential matters arise: (i) the costs of this action; (ii) whether to disturb the costs orders made in the Manchester proceedings; (iii) the costs of the Manchester proceedings; (iv) any payment on account of costs; (v) permission to appeal; and (vi) expedition and any stay on obtaining directions for a retrial, pending an appeal. I received helpful written submissions on these issues from the claimants and Mr Butcher. I will address each issue in turn.

Costs of this Action

The parties could not be more far apart on the issue of the costs of this action. Mr Butcher seeks his costs of this action on the indemnity basis. The claimants seek their costs of this action on the indemnity basis. Mr Butcher's contention is that the claimants have made serious unjustified allegations of fraud against him throughout these proceedings, allegations the court has dismissed. He said it was only on the first day of the trial that the claimants confirmed that such allegations were no long being pursued.

Mr Bankes-Jones cites well known authority for the proposition that unjustified or failed allegations of fraud will very often lead to an award of indemnity costs against the other party. I need not repeat his citations here. They are uncontroversial. Mr Butcher, it is said, had no choice but to come to court to defend himself against the allegations of fraud and has successfully done so. There have also been persistent allegations of fraudulent conspiracy between Mr Butcher, Mr Brooksbank and Outlook.

For the claimants, Mr Bacon submitted that the claimants' case has been consistent throughout: that judgment should be set aside against Mr Butcher as well as Outlook because in the Manchester proceedings (as put in Mr Bacon's skeleton) “he had only succeeded because [Outlook] succeeded” and “fraud infects the whole judgment”, giving rise to the equitable jurisdiction to set aside as against Mr Butcher, which the court has upheld and exercised in respect of Mr Butcher.

Mr Butcher could, Mr Bacon submitted, have conceded those points or adopted “a neutral stance”; instead he proceeded and “lost on every point”. He disputed the admissibility of the Henderson Loggie report and Lady Wolffe's judgment and denied that the latter's decision was binding even on Outlook. He pleaded up to trial that Mr Fradgley had not deceived the court or given untruthful evidence. He denied that the fresh evidence relied on in these proceedings was new. He began a new phase in the war of attrition the claimants have had to fight in pursuit of justice.

Both parties referred to the procedural history in support of their diametrically opposed positions. The relevant history is as follows. This claim was brought on 18 April 2023. The claimants did not then have the new documents referred to in my main judgment. They relied on Lady Wolffe's findings and the evidence on which they were based, including the Henderson Loggie report, which was considered by her.

It was pleaded by the claimants at the outset that Mr Butcher was “guilty of conscious and deliberate dishonesty in the evidence which he gave and/or failed to give in the Manchester proceedings”; he knew “more generally that [Mr Fradgley] was knowingly doing something dishonest but joined in with him to take away [MB Farm] and everything on it” (particulars of claim, paragraph 18d).

At paragraph 64, the claimants pleaded that Mr Brooksbank and Mr Butcher knew that Outlook was acting dishonestly, relying in support on correspondence already in the claimants' possession, concerning the secrecy of the forthcoming seizure of MB Farm, cattle and other property and the subsequent dispute over ownership of the cattle. The correspondence relied on did not include subsequently disclosed documents, not available to HHJ Bird, to which I have referred in the main judgment.

They also relied on Mr Butcher's role in taking possession of MB Farm and cattle and that he had “played dumb” when asked about the matter by Rodger; and on the manner in which possession was obtained and the attempt to put the cattle up for sale without having established undisputed title to them. They pleaded in detail (paragraph 84) the events of 21 November 2012; that Mr Butcher had telephoned Rodger asking for a “chat” while various people including Mr Brooksbank entered MB Farm without permission and were then found there by Kerr Lindsay.

They pleaded Mr Butcher's further role in subsequently granting a tenancy of MB Farm to Beattie. At paragraphs 89–90 they pointed to what they said was substantial correspondence, undisclosed as yet, about advice given by Mr Butcher to Outlook and gave what they said were the best particulars they could, without that correspondence. At paragraphs 91–92, they pleaded:

“It is to be inferred from the facts set out above, that Mr Butcher knew:

a. no later than May 2012 that DML was trading Metal Bridge farm (see paragraphs 59, 61 and 68 above);

b. he had no right to take the cows under any agreement with MBDFL because they were owned by DML (see paragraphs 59, 68 and 76 above);

c. that any sale and leaseback with MBDFL was void under the Insolvency Act (see paragraphs 64(c), 66 above);

d. that in any event the sale and leaseback only gave rights to the cattle defined in that agreement;

e. that Outlook had no security or rights over any of the machinery at the farm (see paragraphs 60 and 79(b) above);

f. that the dairy equipment did not fall under the mortgage pursuant to which Mr Butcher was appointed LPA Receiver;

g. that neither MBDFL or anyone else was in possession of the farm, because Willie trading as DML was.

92. Outlook gave instructions to Mr Butcher and Mr Butcher accepted instructions to be appointed as agent and LPA Receiver and/or took steps allegedly by reason of those appointments to take possession of and to sell assets which did not, and which they both knew did not, fall under either the sale and leaseback or the mortgage:

a. they both knew the cattle were owned by DML, and that there was therefore no right to possess them under any agreement with MBDFL;

b. they both knew that any agreement was with MBDFL was liable to be set side under the Insolvency Act;

c. they both knew that a significant number of the cattle on site were not on the sale and leaseback, whether the correct party was DML or MBDFL;

d. they both knew that none of the machinery and/or foodstocks and/or dairy equipment was covered under either of the documents under which Mr Butcher was appointed;

e. they both knew that what Outlook was proposing and carried out included deliberately misleading the Lindsays.

…. .”

The relief sought was, as against Mr Butcher, setting aside the Manchester proceedings; reversal of the costs order in his favour; and “an order that their costs of the Manchester proceedings be paid by Outlook and Mr Butcher and that they should be required to reimburse the costs …. already paid with interest on both sums. Mr Butcher took the decision to rely entirely on [Mr Fradgley's] evidence which he knew was not the truth” (paragraph 96). They also sought an account of sums received by Mr Butcher as LPA receiver and for the cattle and other property; and that the unaddressed claims against him for conversion and trespass should be dealt with in the retrial.

On 18 July 2023, the claimants served their reply to Mr Butcher's defence. The...