![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Otuo v Brierley [2015] EWCA Civ 1143 (12 November 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1143.html Cite as: [2016] EMLR 6, [2015] EWCA Civ 1143 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Nicholas Strauss QC (sitting as a High Court Judge)
HC12D04110
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE KITCHIN
and
LORD JUSTICE CHRISTOPHER CLARKE
____________________
Frank Otuo |
Claimant/ Respondent |
|
- and - |
||
David Raymond Brierley |
Defendant/Appellant |
____________________
Gideon Roseman (instructed by Sherwood Solicitors) for the Defendant/Appellant
Hearing date: 13 October 2015
____________________
Crown Copyright ©
Lord Justice Kitchin:
Introduction
Background
The judgments
"I am going to make an order that Mr Otuo should pay 80% of the costs of the hearings plus any additional costs, I do not know whether they have been incurred or not but such additional costs, if any, as have been incurred in respect of the applications for summary judgment and the applications for specific disclosure and expert evidence, that is 100% of those costs, 80% of the costs of the hearing.
The reason why, obviously the starting point, as Mr Roseman has correctly submitted, is that costs follow the event but I think that I do need to make some allowance for the relatively minor issues on which Mr Otuo has succeeded and, to my mind, for the quite significant issues about limitation in relation to the claim for slander which complicated matters and I think caused significant additional cost over and above that which would have been incurred anyhow in relation to the application to amend the slander [sic].
That is my decision, 80% of the costs of the hearing and 100% of any additional costs incurred in relation to the other matters that I have identified, summary judgment, specific disclosure and expert evidence."
"I am sorry, Mr Roseman, I have never heard of such an order being made before and I do not think it is appropriate, having allowed the amendment on the basis that it is arguable and you are not prejudiced by any delay then I think, to now disallow it on that basis would potentially lead to the court reaching the wrong result because it has not been permitted to consider something that is properly an issue.
Of course, given that the amendments that have been allowed are not all that significant, I do not think it will be a very sensible order to make anyhow."
The appeal
"32A(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply in any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A:
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c) the extent to which, having regard to the delay, relevant evidence is likely:
(i) to be unavailable, or
(ii) to be less cogent that if the action had been brought within the period mentioned in section 4A."
"35(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced –
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party;
…
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
…
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following –
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts as are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action."
"17.4-(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 1980; …
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
"70. … In practice, this course will seldom be appropriate. Before ordering any trial of preliminary issues, the court must carefully consider the ramifications of such an order. Will the same witnesses have to give evidence on related topics at two different trials? What will be the consequence if there is an appeal on the preliminary issue? Will the separation out of preliminary issues ultimately lead to a saving or a wastage of time and costs? Particular problems attach to an order for the trial of preliminary issues before the pleadings are complete. Having said that, I must accept that there are some rare cases where the court will order trial of the limitation issue before deciding whether to give permission to amend."
"32. He further told Mr Wee and his assistant Mr Andrew Davidson that he had in fact given me £166,000.00 which was intended to be given to Mr Wee to at least pay half of the debt owed to him but it appears I have kept that money for myself.
33. When contacted by Mr Wee on this, the Claimant told him that in fact the money was paid as [sic] result of his severance from the Partnership as demanded by the Defendant in order to pave [sic] way for him to pay the rest of the Partnership Creditors.
…
37. The Defendant continued to maliciously peddle the lie to reinforce to Mr Wee that his version of accounts was the truth.
38. In August 2011 after several failed attempts to get the Defendant to honour the terms of the agreement, I issued court proceedings against the Defendant to enforce the contract.
39. The Defendant on receipt of the service of proceedings, threatened that he will peddle the same malicious falsehood to my Congregation's (Jehovah's Witnesses) Body of Elders presided by one Jonathan Morley …
…
46. It was not known to me that the Defendant had indeed carried out his threat to peddle such falsehood to the Elders until his letter of 16th November 2012 where these maliciously [sic] falsehoods and sweeping statements about me were brazenly repeated to my solicitors.
47. I became aware the link [sic] the allegation of fraud by Mr Wee and the Church Elders had with the Defendant on receipt of this letter. This so [sic] because these were some of the issues that were raised on the Church's own "judicial hearing" into the matter. The Church Elders will not disclose to me at the time, where all these allegations have emerged from.
48. The Claimant has suffered gross injustice at the hands of the Church Elders as they had put more faith in the Defendant's allegations against me. I was disfellowshipped from the Church on the 19th July 2012."
Conclusion
Lord Justice Christopher Clarke:
Lord Justice Laws: