Walsh v Singh
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lady Justice Black,Mr Justice David Richards |
| Judgment Date | 10 February 2011 |
| Neutral Citation | [2011] EWCA Civ 80 |
| Docket Number | Case No: A3/2010/0824 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2011 |
[2011] EWCA Civ 80
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
HHJ Purle QC (Sitting as a Judge of the High Court)
Before : Lady Justice Arden
Lady Justice Black
and
Mr Justice David Richards
Case No: A3/2010/0824
Mr Michael Roberts (instructed by The Bar Public Access Scheme) for the Appellant
Mr John Brennan( instructed by Hawkins Family Law) for the Respondent
Hearing date : 20 January 2011
Lady Justice Arden :
This appeal by Mr Mark Buddha Singh concerns the costs order made by HHJ Purle QC on 19 March 2010 following the trial of proceedings brought by Miss Moira Walsh, his former fiancée. The two had lived together for some eight years. There were a number of items of property which each party claimed as against the other. These included claims on Miss Walsh's side to a half-interest in a property known as Vale Cottages, and other land (a 37 acre holding and a paddock) at Leire, Leicestershire under a constructive trust or proprietary estoppel, to absolute ownership of a property registered in their joint names in Italy and to an order for the return of two rings, one being an engagement ring. In addition, Miss Walsh claimed in support of her constructive trust claim that two payments (£7,500 and £25,000) made by her to Mr Singh represented investments for the purchase of the Leire property. Mr Singh counterclaimed for various relief, including payments totalling nearly £35,000, made for Miss Walsh's maintenance after the date of separation, a declaration that he owned the Italian property absolutely and a declaration that Miss Walsh was jointly and severally liable to contribute to the losses of about £80,000 of an equestrian business which Miss Walsh ran (but said Mr Singh owned) at the property in Leire. Other issues, mainly relating to the ownership of a flat which Miss Walsh had owned before she met Mr Singh, and of horses and tack, had also originally been contained in Mr Singh's counterclaim but he had abandoned these claims before the trial.
The parties are represented in this court by counsel who appeared at the trial: Mr Michael Roberts for the appellant and Mr John Brennan for the respondent.
The judge dealt with the issues at trial in a detailed judgment given on 15 December 2009. Miss Walsh lost the Leire property claim but obtained declaration that the two sums of £7,500 and £25,000 were repayable, not on the basis pleaded but on the basis that they were loans, as asserted by Mr Singh. Both parties lost their claims to sole ownership of the Italian property. Miss Walsh won her claim to the rings and successfully resisted the counterclaim.
When the judge came to deal with costs, Mr Singh relied on the fact that he had made a Part 36 offer on 23 January 2009, which Miss Walsh had not accepted. This would have given her the sum of £85,000 in cash and all her costs down to the date of acceptance. But she did not accept it and as a result both parties continued to incur costs. The judgment of 15 December 2009 makes it clear that on several matters the judge had not accepted the evidence of Miss Walsh or that of her witnesses. But it also contains criticisms of Mr Singh's conduct of the proceedings and states that the judge found the evidence of Mr Singh much less satisfactory than that of Miss Walsh.
The significance of making an offer under Part 36 for present purposes is set out in CPR 36.14, which so far as material provides:
"Rule 36.14 Costs consequences following judgment
36.14 Costs consequences following judgment
(1) This rule applies where upon judgment being entered—
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; …
(2) Subject to paragraph (6), where rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that the defendant is entitled to—
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3)…
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (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 when 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."
In applying these provisions, the court must bear in mind the purpose of CPR 36, which is to motivate parties to make, and to accept, appropriate offers of settlement. An order of costs in favour of the party making the offer follows unless the paying party overcomes the hurdle of showing that it is unjust that the usual consequences of an unbeaten Part 36 offer should follow. It is not enough for him to show that he would have obtained an order for the subsequent costs at the trial. Cases in which the losing party succeeds in overcoming this hurdle will depend on their own facts but there are reported cases where this has happened: see, for example, Widlake v BAA Ltd [2010] PIQR P4, where the successful party had caused substantial extra cost by deliberately concealing details of her prior medical history and her conduct in exaggerating her claim.
The judge held (and this has rightly not been challenged on this appeal) that CPR 44.3(4) provided further guidance as to the type of circumstances the court should take into account, and this provides:
"(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including—
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply."
How then did the judge resolve the question of the liability for the costs of the action, including the counterclaim? He first considered whether Miss Walsh had beaten the offer. He found that the aggregate value of her claims was about £61,500. Clearly, Mr Singh was in those circumstances entitled to his costs from 21 days after the date of his Part 36 offer ("the offer expiration date") unless the judge was satisfied that, as was submitted to him by Mr Brennan, it was unjust to make that order. Mr Roberts submitted that he should have his costs not only after the offer expiration date, but also down to that date.
The judge then considered whether it was unjust to order Miss Walsh to pay the costs of the action and counterclaim. He considered the parties' respective success and failures. He also considered the way in which the proceedings had been conducted. He noted that Mr Singh had effectively challenged whether the parties were ever properly engaged to be married. He had alleged that Miss Walsh was living in a fantasy world and buttressed this argument with a suggestion that she was mentally unstable and had obtained disclosure of her medical records, of which there was "a pointless examination". The judge regarded Mr Singh`s conduct of the action as deserving of the criticisms which Mr Brennan "heaped" on him, including the fact that he lost no opportunity to belittle or discredit Miss Walsh, an approach which was likely to be damaging to her given her professional status as a member of the Bar.
The judge noted that Mr Singh had sought to rely upon material that he had obtained by the use of spyware on a laptop used by Miss Walsh. This revealed among other things privileged material. The judge noted that Counsel for Mr Singh had sought to cross-examine on the material until stopped by the judge. The judge noted that this material had caused obvious and visible distress to Miss Walsh. In addition, much of the cross-examination, no doubt on instructions, had been calculated to belittle and discredit Miss Walsh, portraying her as a silly woman who lived in a fantasy world. The judge noted that he had had to stop cross-examination which could only be described as bullying Miss Walsh. There had been an attempt to issue a witness summons against Miss Walsh`s new boyfriend when that had no relevance to the issues. Miss Walsh had given evidence under the threat that her boyfriend would be called. The judge held Mr Singh had acted in a manner which was ungentlemanly, to put it at its lowest.
Before the judge, Mr Roberts contended that Miss Walsh had exaggerated her claims but the judge noted that he had not found her as unsatisfactory a witness as Mr Singh. The judge did not consider that she had at any stage consciously told lies. The judge did not think that any of her witnesses consciously told untruths. The judge held that he was quite satisfied that Mr Singh knowingly did not tell the truth about the rings. He held that Miss Walsh brought her claim in good faith and failed whereas Mr Singh chose to embellish his evidence with untruths and hurtful cross-examination, which was not necessary and raised the temperature of an already emotional case much higher than it need have been.
The judge considered it would be quite unjust if that was not reflected in some way in his order on costs. He held that a...
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