Towns v Pullbrook
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2009] EWHC 1370 (Ch) |
| Date | 17 June 2009 |
| Court | Chancery Division |
| Docket Number | Case No: HC07C02695 |
[2009] EWHC 1370 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Sheldon QC (Sitting as a Deputy Judge of the High Court)
Case No: HC07C02695
JUDGMENT ON COSTS ETC
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.
Richard M Sheldon QC
June 2009
Richard Sheldon QC (sitting as a Deputy Judge of the High Court)
I handed down judgment in this matter on 8 April 2009. The judgment had earlier been provided in draft form to the parties. In the last paragraph of the judgment I stated that as Henry Pulbrook lived in Thailand, in order to inconvenience him as little as possible, I would formally hand down the judgment at a hearing at which none of the parties needed to attend. I stated that if the form of order could not be agreed in advance of my formally handing down the judgment, or if any application were sought to be made arising from the judgment such as an application for permission to appeal, I would consider the matter further (i) on the basis of written submissions, or (ii) if any of the parties so requested, at a further hearing to be arranged.
In a postscript to the judgment I noted that the form of order had not been agreed and I made the following directions:
(i) the parties do serve on each other and file with the court written submissions by 6 May 2009;
(ii) the parties do serve on each other and file with the court written submissions in reply by 27 May 2009.
I also stated that the written submissions should specify with clarity (i) the orders which I was being asked to make giving effect to the judgment; (ii) the orders as to costs which I was being asked to make; (iii) any other orders which were sought consequential upon the judgment, such as for permission to appeal and/or for a stay. I stated that the written submissions should set out the arguments in support of the position adopted by the party in question and identify any relevant materials which that party relied upon and that insofar as the position of a party has already been set out in correspondence, I encouraged the other party to respond to that position in the written submissions to be served and filed on 6 May 2009.
None of the parties has requested a further hearing. I shall therefore decide the outstanding issues on the basis of the written submissions of the parties. The Claimants' written submissions were supplied to me by 6 May 2009. On 4 May 2009, Henry Pulbrook wrote to the Claimants' solicitors stating that he would be unable to complete his submissions in time because of a shut down of electricity and proposed that submissions be exchanged by fax at 4pm UK time on Friday 8 May 2009. Although, Henry Pulbrook's written submissions are dated 8 May 2009 they were not received by the Claimants until 18 May 2009 (and copies supplied to me on the same date). Henry Pulbrook has confirmed that he received the Claimants' written submissions by post on 13 May 2009. On 27 May 2009, the Claimants, in accordance with the timetable I prescribed, lodged written submissions in reply. In a letter to me of that date, the Claimants' solicitors informed me that they had earlier that day spoken to Henry Pulbrook in Thailand and that he had stated that he had not prepared his submissions in reply and would not be ready to file them on that day. He gave no indication as to when he expected to have completed them. There has been no request by him for an extension of time to lodge submissions in reply. I have nevertheless delayed producing this judgment until after 3 June 2009 so as to give Henry Pulbrook the benefit of the full three week period since he received the Claimants' written submissions to produce submissions in reply, as envisaged in the directions I made earlier. I have received no further submissions from Henry Pulbrook. I would, however, note that the Claimants' position, as reflected in their opening written submissions, had already substantially been set out by them in correspondence prior to my handing down judgment on 8 April 2009 so that Henry Pulbrook has had the opportunity to deal with that position in his opening written submissions, and he has in fact done so. In these circumstances, I see no reason to delay any further my decision on the outstanding matters.
In this Judgment I adopt the definitions which appear in my earlier Judgment.
A draft of the Order which the Claimants invited me to make to reflect my earlier judgment was sent to Henry Pulbrook on 1 April 2009. The Claimants have since produced an amended version, attached to their written submissions sent on 6 May 2009, which is only slightly different from the earlier draft, the differences being confined to certain details in the orders for costs which the Claimants seek. There are issues on costs which I have to decide. So far as the other parts of the draft Order are concerned Henry Pulbrook agrees to the declaration in paragraph 1 (to the effect that the March 2006 Deed is liable to be set aside by reason of having been procured by the undue influence of Henry Pulbrook.), the order in paragraph 2 (that the March 2006 Deed be set aside) and paragraphs 9 and 10 (orders for permission to serve the Order on Henry Pulbrook and Dr Pulbrook out of the jurisdiction).
A copy of the earlier version of the form of the draft Order proposed by the Claimants has been sent to Dr Pulbrook (the amendments in the later version do not affect him). By letter dated 2 May 2009, he confirms that, provided that the order appearing at paragraph 8 of the draft (that there be no order for costs against him) is made, he has no further comments.
The issues that I have to decide relate to (i) the sums that should be paid by Henry Pulbrook to the Claimants, and interest thereon; (ii) costs; and (iii) permission to appeal.
I should mention at this stage (relevant to points (i) and (ii)) that on 22 April 2008, Mr Towns made a Part 36 offer to accept £66,000 inclusive of interest in satisfaction of the entire claim and counterclaim, which was available for acceptance within 28 days from the date of the letter. The offer was made more than 21 days before the trial of the claim (and more than 21 days before the claim was originally listed to be tried). The relevant period (as defined in CPR 36.3(1)(c)) expired on 20 May 200The Part 36 offer was not accepted by Henry Pulbrook, nor was it withdrawn or changed prior to judgment.
The Claimants have recovered judgment against Henry Pulbrook which is at least as advantageous as the proposals contained in the Part 36 offer. Accordingly the condition in CPR 36.14(1)(b) is satisfied and the following provisions of CPR 36.14 apply:
(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to -
(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate.
(4) In considering whether it would be unjust to make the orders referred to in paragraph.. (3) above, the court will take into account all the circumstances of the case including -
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.
CPR 36.14 (6) has no application on the facts of the present case.
Sums awarded at trial and interest
In paragraph 3 of the draft Order proposed by the Claimants, they seek an order that:
The First Defendant do pay the Claimants the sum of £124,195.01 together with interest thereon of £29,410.87 to the date of Judgment of 8 April 2009 and thereafter at the rate of 8% per annum until the date of payment.
There can be no doubt that it follows from my earlier Judgment that there should be an order that Henry Pulbrook do pay the Claimants the sum of £124,195.01, which is the total of the five payments which I have held were wrongfully paid away from the Joint Account by him. In his written submissions, Henry Pulbrook asserts that: “Not one single penny of the claim moneys adjudged for the Claimants was received by me personally. At no time did I receive the £124,195.01 personally, and at no time did I retain any of it for my personal use. The entirety of the £124,195.01 is money paid to Farrer & Co directly, or received by me and my brother jointly and subsequently paid away in legal fees… I submit that an alternative should be pursued based upon retrieval of the money”. Henry Pulbrook here ignores the fact that the monies were used to pay his personal liability to Farrer & Co. In any event, it is clear that there should be an order that Henry Pulbrook do pay the Claimants the sum of £124,195.01.
The figure of £29,410.87 for interest is calculated on the following basis:
(a) from the date each payment was made until 20 May 2008 (the expiry of the relevant period) at 8%;
(b) from 21 May 2008 until the date of judgment (8 April...
To continue reading
Request your trial