Trevor Ford v Simone Dominique Bennett
| Jurisdiction | England & Wales |
| Judge | Sir Bernard Rix,Lord Justice Baker |
| Judgment Date | 03 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1604 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2018/2482 |
| Date | 03 October 2019 |
[2019] EWCA Civ 1604
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr George Bompas QC, sitting as a Deputy High Court Judge
HC-2015-005146
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Baker
and
Sir Bernard Rix
Case No: A3/2018/2482
Stuart Hornett (instructed by LSGA Solicitors) for the Appellants
David Berkley QC (instructed by Fuglers Solicitors) for the Respondents
Hearing dates: 25 July 2019
Approved Judgment
Introduction
This is a costs appeal against the imposition of indemnity costs, brought with the leave of Lord Justice Lewison.
The appeal is that of the additional parties, Mr Trevor Ford and Mr Simon Renoldi.
Following a twelve day trial, Mr George Bompas QC, sitting as a deputy judge of the Chancery Division, found that the defendant, Wayne Bennett, and the additional parties, had failed to prove an oral agreement whereby they alleged that the second claimant, Mr Ben Bennett, had agreed to form a partnership with them to hold the East Thurrock United Football Club and its Ground at Corringham, in Essex, in shares split between 50% for Ben Bennett, 20% for Wayne Bennett and 10% each for the additional parties. The judge's careful judgment following trial, about which no criticism has been made, was handed down on 25 July 2018, [2018] EWHC 1931 (Ch). It is a detailed judgment running to 315 paragraphs, dealing with every aspect of a complicated family dispute extending over many years. Trevor Ford is a nephew of Ben. Simon Renoldi is the only non-family member involved in the dispute.
Unfortunately, the Bennett family has long been divided. In particular, the defendant, Wayne Bennett, had fallen out with his father, Ben Bennett, in about 2006. In other proceedings, the “FTT Proceedings”, which Wayne Bennett commenced in January 2014, concerning numerous other properties in Essex, he made a collateral allegation that the beneficial interests in the Club as of 2006 were in the proportions stated above. Then, on 5 December 2014, he applied to the Land Registry to have a restriction to support his interest placed on the register for the Ground. That led to these proceedings which Ben Bennett, and his daughter Dominique (the first claimant), in whose name the Ground is registered as the owner of the freehold title of the Ground, commenced on 17 December 2015 against Wayne Bennett. Dominique said she held the Ground on a bare trust for her father, Ben, absolutely.
In his defence and counterclaim, filed on 9 February 2016, Wayne Bennett alleged that in a meeting in 2002 between Ben, himself, Ford and Renoldi, it was agreed that they would acquire the Club and its Ground in the proportions stated above. Wayne also pleaded alternative claims to an interest in the property, including an agreement later in 2002 to sell it to him as a result of which he held a beneficial interest on the terms of the alleged partnership. At trial he was to claim that he had signed a TR1 transfer form as transferee, although no transfer form was in evidence.
On the same day as his defence and counterclaim, Wayne served a CPR 20 claim form on the additional parties. He did so in order to involve them as parties on the basis, in reliance on extensive parts of his defence, that they were partners in the alleged partnership and thus proper parties to his counterclaim. In this he appears to have been reasonably confident that they would support him in his case, otherwise he would not have involved them. It might be said that he could not afford not to involve them. However, he could have said that that was a matter for the claimants. And what is certain is that to involve parties who would not support him in his account of the alleged agreement would have been disastrous.
On 10 March 2016, the additional parties filed both their defence to the additional claim and particulars of their additional claim against the claimants. In essence, while asserting lack of knowledge to aspects of Wayne's case, they endorsed his account of the critical meeting in June 2002. In this connection, they expressly relied on (and attached) a note (subsequently at trial called the “N&Q document”, N&Q standing for “Notes & Comments”) said to have been made by the Club's accountant, Mr Paul Baker. Mr Baker was called at trial by Wayne.
In his comprehensive judgment, the judge entirely rejected the cases of Wayne and the additional parties. For convenience he called them the “Defendants”, when it was relevant to do so, ie when he did not have to distinguish between them. I shall adopt the same expression. Although there were aspects of Wayne's case which did not concern the additional parties, the judge later (in his costs judgment) referred to the allegation as to the June 2002 meeting as being “the core issue raised by the Defendants together”, a description which Mr Stuart Hornett, who appeared on behalf of the additional parties at trial, and on the costs hearing, and on this appeal, accepted. The judge was very critical of both Wayne (and his primary witnesses) and the additional parties, but particularly of the former. He expressly regarded Wayne (and his witnesses) as dishonest. He did not use such strong language about the additional parties (or their witnesses), but he plainly regarded them as having joined themselves, speculatively and, to say the least, on an unreasonable basis, to Wayne's coat-tails.
In his costs judgment, the judge made the following dispositions: (i) he deducted a sum of £17,900 (reflecting pre-action costs) from the costs for which the Defendants were otherwise liable; (ii) he found the Defendants jointly and severally liable for 80% of the claimants' costs, and Wayne alone for the balance of 20%, to reflect Wayne's responsibility as being the greater; (iii) as between the Defendants, he allocated the shared costs 50%/50% to Wayne and the additional parties respectively; (iv) costs were to be on the indemnity basis.
On this appeal, the additional parties complain only of disposition (iv). They do so by raising three grounds of appeal: (1) the judge was wrong to award costs against the additional parties on an indemnity basis when there had been no express findings of dishonesty against them, or of collusion with Wayne, or of being responsible for knowing, even if not dishonestly so, that their claim was bad; (2) in the circumstances, the additional parties' claim was not “out of the norm”, and the judge was wrong to hold that it was “far out of the norm and is not a case of just witnesses not being believed”; and (3) the judge failed to identify any circumstances about the additional parties' conduct which could properly justify indemnity costs. At the hearing of this appeal, Mr Hornett also submitted that the judge had made a series of errors of fact in his costs judgment (concerning his own findings at trial) which gave to this court a new discretion.
The judge's substantive judgment
The judge's substantive judgment is too long and too rich to be reproduced in synopsis here. However, the Court was taken through it in some detail by Mr Hornett, and I have considered it carefully.
In brief, the judge found as follows:
(i) The June 2002 agreement alleged was not made, “and nothing was said to the Defendants to lead them to the conclusion that they were to be partners with Ben and each other, or that Ben was proposing to give them any beneficial interest in the Football Club or its property” (para [236]).
(ii) As for Wayne's evidence, it was “contrived”, and he had “[no] memory of the events which he described” (para [237]). The judge also rejected Wayne's case about the purchase of the Ground or having signed a transfer form as buyer.
(iii) Mr Ford “was not a satisfactory witness”. The judge gave numerous examples to support that verdict (at paras [241]–[244]), concluding with the significant remark that “the most accurate evidence Mr Ford gave was when, in cross-examination he said “ I would not know about time and dates and things like that”” in relation to the alleged agreement. The judge also found that Mr Ford had “exaggerated his contributions to the Football Club” (at para [279]). (iv) As for Mr Renoldi, the judge gave detailed reasons why his alleged belief in the June 2002 agreement was implausible (at paras [245]–[248]). In doing so, the judge was calling into question the honesty of that belief.
(v) Wayne called three witnesses, each of whom was strongly criticised by the judge. The three were Mr Baker, an accountant, who gave evidence inter alia about the N&Q document, and two conveyancers, Mr Robert Stonebrook and Mr Paul Reader, who gave evidence about Wayne's allegation about a sale of the Ground to him and a signed transfer form. Mr Baker's evidence was dealt with at length (at paras [109]ff). The judge concluded about the N&Q document that he was not satisfied that it was genuine (at para [117]); and otherwise that “Mr Baker's evidence was simply made up” (at para [126]). As for Mr Stonebrook (who had received a lifetime ban from the Solicitors Regulatory Authority) and Mr Reader (who had served a prison sentence after being convicted in 2012 of money laundering and conspiracy to defraud), the judge said that he did not regard either of them as reliable, or as having any genuine memory of the conveyancing transaction they purported to give evidence about (at para [185]). The judge also said their evidence “had no genuine foundation” (at para [237]).
(vi) In sum, as to the alleged June 2002 agreement, the judge said (at para [226]): “I observe that for reasons discussed elsewhere none of the three individuals [ie the Defendants] who gave evidence about the supposed meeting at which the 2002...
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