Case No: CH/2006/APP/0373 
&CH/2006/PTA/0595

Neutral Citation Number: [2006] EWHC 2974 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 24th November 2006

Before :

MR JUSTICE WARREN
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Between :

	ANN STEPHANIE HURST	Appellant	
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	BDO STOY HAYWARD LLP	Respondent	
			
	Between:		
			
	ANN STEPHANIE HURST	Appellant	
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	ANTHONY PETER SUPPERSTONE	Respondent	
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Mrs A S Hurst as Appellant appeared in person and was represented by Mr R A Hurst (her husband)
Ms Lexa Hilliard (instructed by Taylor Wessing) appeared for the Respondent BDO Stoy Hayward
The Respondent Anthony Peter Supperstone did not appear and was not represented

 Hearing date: Tuesday 14th November 2006
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 Judgment

Mr Justice Warren
Introduction: 
1.	I have before me two matters concerning Ann Stephanie Hurst (“Mrs Hurst”).  First, there is an application for permission to appeal from an order of Master Bragge dated 12 July 2006 striking out Mrs Hurst’s claim against BDO Stoy Hayward LLP (“BDO”) in her negligence action against them in action HC06C00601.  The second is an appeal from a decision of Registrar Jaques dated 17 May 2006 made in the bankruptcy proceedings concerning her husband Robert Alfred Hurst (“Mr Hurst”) in proceedings No 5085 of 2000, by which the Registrar refused Mrs Hurst’s application for a stay of the possession order in respect of the matrimonial home of Mr and Mrs Hurst and ordered the costs of the respondent to that application, Mr Hurst’s trustee in bankruptcy (whom I shall refer to as Mr Supperstone), to be paid by Mrs Hurst on the indemnity basis which costs the Registrar summarily assessed at £6,732.80.  Mrs Hurst does not need permission to appeal that decision.  Mr Supperstone was, I should note, at all material times, a partner or consultant of BDO.

2.	Mrs Hurst attended court for the hearing of her application and her appeal.  Mr Hurst (who is a solicitor, although I do not know if he retains a practising certificate) asked to be allowed to represent her.  I allowed this but not without some reluctance.  As will appear, Mr Hurst is himself intimately concerned with this litigation which is, in reality, simply one aspect of his attempt to hold Mr Supperstone responsible for what he alleges were breaches of duty by Mr Supperstone and BDO in advising him and his wife about a possible IVA which did not, in the event, take place and the failure of which resulted in Mr Hurst’s bankruptcy and eventual eviction of the family from the home.  It is apparent to me that Mr Hurst has run this litigation on behalf of his wife and that, although she probably understands what is going on, he calls the shots if I can put it that way.  

3.	Mr Hurst has appeared before a number of judges of this Division on his own behalf in relation to two separate, but closely related, issues and he has made several journeys to the Court of Appeal as well.  He has been almost wholly unsuccessful: I say almost because he did succeed in obtaining a stay of the possession order for a limited time from Neuberger LJ after a refusal by me to grant any stay.

4.	Although, in relation to Mrs Hurst’s claim against BDO, I have before me only an application for permission to appeal, which might, in an ordinary case, be dealt with quite shortly and without a reserved judgment, I have thought it sensible to provide the parties with a full judgment and detailed reasons for the decisions which I have reached.

History
5.	The history of Mr Hurst’s litigation is recorded, as far as it then went, in a judgment of mine dated 31 October 2005.  That dealt with Mr Hurst’s partnership dispute, his litigation to the House of Lords in relation to it and his subsequent bankruptcy.  An order for possession and sale of the matrimonial home was made by Registrar Jaques in December 2004 on the application of Mr Supperstone as Mr Hurst’s trustee in bankruptcy.  Following a series of unsuccessful applications to appeal that order, the Court of Appeal finally disposed of Mr Hurst’s hopes of overturning the decision of Registrar Jaques on 12 August 2005 when Clarke LJ, at an oral hearing, refused permission to appeal.  

6.	My judgment then dealt with two actions which Mr Hurst himself had brought against Mr Supperstone.  By the time of the hearing before me, what I called “the first claim” (that is to say a negligence claim against BDO concerning advice allegedly given in relation to Mr Hurst’s potential IVA) had been struck out by Master Moncaster on 10 October 2005 (my earlier judgment gave the date incorrectly as 28 September).  The Master had refused permission to appeal but there was pending an application for permission to appeal.  As it happens, the application for permission to appeal subsequently came before me on 20 January 2006 and I gave Mr Hurst permission to appeal.  

7.	The application which was the subject of my judgment dated 31 October 2005 was an appeal by Mr Hurst in his bankruptcy proceedings from part of an order made by Registrar Rawson refusing to extend a stay of the original possession order of December 2004.  I dismissed the appeal.  On 7 February 2006, the Court of Appeal refused Mr Hurst’s application for permission to appeal my decision.  Mr Hurst then applied again, in his bankruptcy proceedings, for a stay of the possession order.  That application was issued on 10 February 2006 and relied on an alleged change of position from the previous refusal of a stay, namely that Mr Hurst now had my permission to appeal Master Moncaster’s order.  He submitted that possession should not be granted until the substantive appeal had been heard.  I dismissed that application on 16 February.  Undaunted, Mr Hurst then brought effectively the same application in his negligence proceedings against BDO, an application which I dismissed on 17 February.  

8.	Mrs Hurst launched her own negligence proceedings against BDO on 17 February 2006.  Then, on 24 February, she applied, in Mr Hurst’s bankruptcy proceedings, for a stay of the possession order.  Registrar Rawson dismissed that application.    

9.	Mr Hurst sought to appeal my refusal on 16 February of a stay of the possession and sought a stay pending appeal from the Court of Appeal.  On 7 March 2006, Neuberger LJ granted a limited stay, directing that the possession order be further dealt with at the hearing of the appeal from Master Moncaster for which I had given permission in January.  The appeal itself came before Peter Smith J, who dismissed it on 7 April 2006 and ordered that the matrimonial home be vacated by 28 April.     

10.	The basis of Neuberger LJ’s decision was this.  He was concerned that I had been influenced in my decision by the view I took of the prospects of success for Mr Hurst in his negligence claim against BDO.  He observed that it could be said that the strength of that claim was going to be fully considered on 4 April by a judge who would have to decide whether to uphold or overturn the striking out by Master Moncaster.  Therefore an arguably fairer way of dealing with the stay would have been to adjourn it to 4 April rather than deciding it on 15 February.  It could be said that it would have been sensible and convenient to take that course given that the strength of the claim was a significant factor in the stay application.  In addition, the assistance given by the two principal cases on this topic, Re Gorman and Bowe v Bowe, could be said to have pointed in favour of the stay being granted for that period.  Neuberger LJ asked himself whether, in the light of these factors, there was a real prospect of success in Mr Hurst’s appeal from my decision.  He said that the answer was close to no but it was not no.  He then proceeded to hedge his decision with protections for Mr Supperstone.  He also directed that the issue of possession should be addressed de novo by the judge (ie in the event, Peter Smith J) hearing the appeal from Master Moncaster.

11.	Mr Hurst then sought permission to appeal the order of Peter Smith J, permission finally being refused at an oral hearing on 2 May 2006.  That was the end of Mr Hurst’s action against Mr Supperstone and, apparently, of his own application to stay the possession order.

12.	Returning to Mrs Hurst’s action against BDO, BDO issued a strike-out application on 10 March 2006.  On 12 July 2006, Master Bragge dismissed Mrs Hurst’s claim.  It is that order with which the present application for permission to appeal is concerned, the Master himself having refused permission.

13.	On 10 May 2006, following the final rejection by the Court of Appeal of Mr Hurst’s action against BDO and his own application for a stay of the possession order, Mrs Hurst issued a further application to stay the possession order.  The application was made pending determination of BDO’s strike out application.  On 17 May 2006, Registrar Jaques dismissed Mrs Hurst’s application: it is that order which Mrs Hurst now seeks to appeal.

14.	Mrs Hurst did not require permission to appeal that order of Registrar Jaques.  She accordingly launched an appeal and applied to stay the possession order pending that appeal.  That application was dismissed by Rimer J on 19 May.  On the afternoon of the same day, a yet further application to stay the possession order was made to Registrar Jaques on the basis that Mrs  Hurst had made an offer to purchase the property which, if it went ahead, would make the possession order academic.  Further applications by Mr Hurst to Registrar Jaques and to me for a review of earlier orders and, again for a stay were dismissed on 26 May and 8 June.

Permission to appeal from the order of Master Bragge dated 12 July 2006
15.	Mrs Hurst’s claim against BDO is based on the proposition that BDO owed her a duty of care when acting for Mr Hurst in relation to a proposed IVA for him in May/June 2001.  She asserts that various representations were made to her which were incorrect.  She says that she relied on them to her detriment and has suffered loss.

16.	The Particulars of Claim disclose that at that time Mr Hurst instructed BDO (who acted in this instance through Mr Supperstone) in relation to a proposed IVA for him.  In his skeleton argument on behalf of his wife, Mr Hurst puts her case on the basis that there was a contract between her and BDO arising out of the letter dated 1 June 2001 to which I come in a moment.  The Particulars of Claim do not put it in that way and the argument before me proceeded, essentially, on the basis of a duty of care giving rise to a claim in negligence.  Nonetheless, I shall consider both ways of putting the claim.

17.	Mr Hurst approached Mr Supperstone/BDO in relation to his financial affairs sometime in or around May 2001.  By a letter dated 31 May 2001, BDO expressed its willingness to assist Mr Hurst in drafting the document and in applying to the court for an interim order under the provisions of Part VIII Insolvency Act 1986.  The willingness was expressed to be assistance with the drafting, the document remaining at all times Mr Hurst’s own document.  The clear intent of that was to show that Mr Hurst remained responsible for the contents of the document.  Mr Supperstone made clear the importance of disclosing full information regarding, among other matters, assets and liabilities.  He also indicated that he would shortly be sending a confirmation form for Mrs Hurst to sign providing consent to sell the property.

18.	There had clearly been discussions and correspondence, prior to that letter, between Mr Hurst and Mr Supperstone.  Mr Supperstone says in his evidence in support of the application before Master Bragge that Mr Hurst informed him that he owned the matrimonial home at 73 Southway (“the Property”) jointly with Mrs Hurst so that it was evident to him that Mrs Hurst’s co-operation would be necessary.  It was in that context that he wrote a letter dated 1 June 2001 in the following terms:

“I have been instructed by [Mr Hurst] to assist with arrangements to place a proposal before his creditors and your husband has a copy of the draft proposal for you to study.

I understand that you jointly own the above property with [Mr Hurst] which it is proposed will be sold.  Surplus funds attributable to [Mr Hurst]’s interest in the property will be applied to make payments to creditors under the proposal.  Obviously to effect a sale of the property it will be necessary to receive your co-operation and I attach a form of undertaking for your completion and return to me.

You should take independent legal advice regarding the proposal and the attached undertaking.”

19.	The attached form of undertaking (which I will call the “Undertaking and Confirmation”) was duly signed by Mrs Hurst on 6 June 2001 after minor manuscript corrections to Mr Hurst’s middle name.  It was then returned to Mr Supperstone.  It includes the following:

“I have read the draft proposal for an Individual Voluntary Arrangement made by [Mr Hurst] and understand that if the proposal is approved by the creditors then the property will be sold and the surplus attributable to [Mr Hurst]’s interest will be used to pay his creditors.

I confirm that the property is owned in the following shares:
			
				Percentage
[Mr Hurst]		50%
Mrs Hurst			50%

I undertake to co-operate fully with [Mr Hurst] and the Supervisor of the [IVA]… in connection with the sale of the property……I further undertake to vacate the property when requested to do so, subject to receiving not less than three weeks notice.

I confirm that I have been advised to take independent legal advice in relation to the proposal and the above, and have had the opportunity to take that advice.”

20.	Mrs Hurst pleads in paragraph 5 of her Particulars of Claim that she and Mr Hurst had agreed that 50% of the net proceeds of sale would be available for distribution to Mr Hurst’s unsecured creditors within the framework of the IVA.   Mrs Hurst does not suggest that she had any conversation to that effect with Mr Supperstone; nor does the pleading allege that Mr Hurst himself had such a conversation with Mr Supperstone.  Nor does the evidence filed on the application before Master Bragge make any such allegation.  Further, Mr Hurst himself has not even suggested in submissions, let alone in any evidence, that he had a conversation with Mr Supperstone to the effect that beneficial ownership was unclear, but that for the purposes of the IVA only, he and his wife would be prepared to accept 50/50 ownership.

21.	It was, she says, in that context (ie of what she had discussed with Mr Hurst), that Mr Supperstone sent the letter of 1 June 2001.  It is perhaps worth noting what her own counsel said to Registrar Jaques (a matter referred to by Clarke LJ on her application for permission to appeal from the decision of Michael Briggs QC who had upheld the decision of the Registrar) namely: “She trusted her husband and believed that this was a document she should sign because he wanted her to sign it.  So she signed it.” 

22.	She then pleads as follows (see paragraph 8):

“On the basis of [BDO]’s representation that the undertaking was factually correct and necessary for implementation of the proposed IVA, [Mrs Hurst] signed it on 6 June 2001 and requested Mr Hurst to deliver it to Ms Vera Banwell (Mr Supperstone’s assistant).”

23.	Mrs Hurst then pleads that Mr Supperstone and/or Ms Banwell were aware that since such legal advice would not have altered her commercial decision to agree to the sale and to the appropriation of 50% of the net equity within the framework of the IVA, she would not be taking independent legal advice.

24.	The IVA did not proceed.  Mr Hurst became bankrupt and Mr Supperstone became his trustee in bankruptcy.  An issue then arose about the correct beneficial ownership of the matrimonial home.  Mrs Hurst claimed that she owned much more than 50% and Mr Hurst supported her.  

25.	That issue came before Registrar Jaques at a hearing at which he heard oral evidence and at which Mrs Hurst was represented by counsel.  He decided that the home was held by Mr and Mrs Hurst as joint tenants in law in trust for Mr Supperstone (as Mr Hurst’s trustee in bankruptcy) and Mrs Hurst as beneficial tenants in common in equal shares, the former share being charged with the repayment of whatever was owing under a mortgage granted by them in 1989.

26.	Mrs Hurst appealed against that decision.  Her appeal was heard by Michael Briggs QC sitting as a deputy judge of this Division.  He rejected two of the three reasons which the Registrar had given for the decision he had reached (namely that there was a declaration of trust as a result of statements made by them for the purposes of the unsuccessful IVA and that there was a common intention at the time of the acquisition to the effect that they were 50/50 owners), but he upheld the third ground namely that this was a case where the size of the parties’ interests fell to be determined on the basis of what appeared to the court then to be fair having regard to all of their conduct with reference to the Property both at the time of and subsequent to its purchase.  He had already reviewed a number of documents in which Mr Hurst had represented, when it had suited him to do so, that he had a 50% share in the equity of the house and he had commented on the Registrar’s conclusions about Mr Hurst’s evidence, he (the Registrar) having had the advantage of hearing Mr Hurst’s oral testimony.

27.	At paragraph 47 of his judgment, Mr Briggs referred to the cross-examination of Mrs Hurst before the Registrar.  The Registrar had concluded that when signing the undertaking which I have set out above, Mrs Hurst had known exactly what she was doing and the effect of what she was doing.  Mr Briggs concluded that the Registrar was fully entitled to reach that conclusion.  That is an important statement by the judge because it shows not only that he accepted the Registrar’s finding but also that Mr Hurst is wrong when he submits, as he does, that the judge disagreed with the Registrar’s findings about Mrs Hurst’s knowledge.  All that Mr Briggs in fact did was to reject the first two reasons which the Registrar relied on in arriving at his conclusion as to beneficial ownership.

28.	Mr Hurst on behalf of his wife relies strongly on what the judge has to say about the undertaking.  Thus, at paragraphs 61 and 63 of his judgment, Mr Briggs says this:

“The learned Registrar described the written statements made by Mr and Mrs Hurst in 2001 as a compelling factor in his assessment of what was fair.  In my judgment he was right to do so……
Were it not for the 2001 statements, and the fact that the persons to whom they were made have in effect succeeded to Mr Hurst’s interest in the Property, I would have been inclined to think that a 50/50 apportionment was a little less than fair to Mrs Hurst.  But I find myself just as compelled as was the learned Registrar to conclude that in the light of those statements, when evaluated together with all the other relevant conduct at the time and subsequent to the purchase of the Property, a 50/50 apportionment is fair both to Mrs Hurst and Mr Hurst’s creditors.”
29.	There are two points to note here.  

a.	The first is that the judge’s inclination was that 50/50 would otherwise have been a little less than fair; but he makes, quite understandably, no assessment of what effect the statements actually did have so we do not know whether he would have held that it would have made a 1%, 5%, 30% or some other percentage difference to the outcome:  the 2001 statements were, after all, evaluated not in isolation but with the other relevant conduct of the parties.  

b.	The second is that the judge refers, as did the Registrar, to the statements of both Mr and Mrs Hurst in 2001.  This is a reference, in the case of Mr Hurst, to his IVA proposal signed by him on 12 June 2001, in which he had stated that his share in the house was 50%, confirming, in paragraph 30, that he confirmed that to the best of his knowledge and belief the statements contained in the proposal were true.   There was no source of information other than Mr Hurst in terms of the asset identification in the proposal: there is, for instance, no suggestion that Mr Supperstone had any other source of information save, I suppose, that his receipt of the undertaking from Mrs Hurst containing a statement to the same effect might have given him comfort.  However, in relation to that, Mrs Hurst says the position is precisely the opposite and that it was Mr Supperstone’s duty to have ensured that her undertaking made clear that she accepted 50/50 ownership only for the purposes of the IVA and that if the IVA did not go ahead, she should be free to assert the status quo ante if I may use a forbidden phrase.  The point I am making, however, is simply that it is not just Mrs Hurst’s undertaking which compelled the conclusion that the ownership was 50/50 but also Mr Hurst’s own statement in his proposal.

30.	All that one can conclude, therefore, is that Mrs Hurst might have had an arguable case to a greater that 50% share if she had not signed the Undertaking and Confirmation.  But given that Mr Hurst signed the proposal and given the other factors identified, it is a matter of speculation to what extent her share might have been more.

31.	Returning then to Mrs Hurst’s Particulars of Claim, she alleges in paragraph 14 that the Undertaking and Confirmation was factually incorrect since, according to Mr Briggs’ decision, the Property was not held 50/50 by Mr and Mrs Hurst but Mr Hurst’s interest in the Property was subject to an equity of exoneration.  The exoneration point is, I consider, a red-herring: the Registrar himself decided that Mr Hurst’s share (and thus the share passing to Mr Supperstone for the benefit of the estate) was to bear the burden of the relevant mortgage.  What Mrs Hurst can, and does, say is that Mr Briggs indicated that a 50/50 split (ie before taking account of any equity of redemption) would have been a little less than fair to Mrs Hurst absent the 2001 documents and that her share might have been larger – as to which see the immediately preceding paragraph above.

32.	Then, in paragraph 18, she alleged that she signed the Undertaking and Confirmation on the basis of BDO’s representation that (a) it was factually correct (b) it was necessary for the purposes of the IVA (c) BDO was acting in the best interests of Mr Hurst and his family and (d) BDO would not request Mrs Hurst to sign a document which was incorrect or unnecessary or which might prejudice her in the event of the IVA not proceeding.  And then in paragraph 19 she alleges that all of those representations were false.

33.	Let me return now to the 1 June 2001 letter and the Undertaking and Confirmation to express my own conclusion about it for the purpose of assessing whether Mrs Hurst’s appeal would have a real prospect of success (the test laid down in CPR 52.3(6)(a)).  

34.	The letter itself in the first paragraph explains that Mr Supperstone has been instructed by Mr Hurst to assist him.  That was a true statement and contains no misrepresentation of any sort; taken by itself, it could not possibly lead Mrs Hurst to think that BDO were undertaking any duty to her.  One can see from the letter that the draft proposal was already in existence and available for Mrs Hurst to see.  There is nothing to suggest that that draft said anything different from the signed proposal so far as concerns the Property.  Indeed, earlier draft proposals at a time when Mr Hurst was instructing a different firm, Kroll Buchler Philips also stated Mr Hurst to have a 50% interest in the Property “which is jointly owned by my wife and myself”: see for this history and the dismissal of claims by Mr Hurst against Kroll, paragraph 38 of the judgment of Peter Smith J dismissing Mr Hurst’s appeal from the dismissal by Master Moncaster of Mr Hurst’s own action against BDO.

35.	As to the signed version of the proposal, this is dealt with in paragraph 7 of the judgment of Registrar Jaques in his decision dealing with the ownership of the Property, a decision to which Mrs Hurst was party.  That proposal needed to set out Mr Hurst’s assets, not only to show creditors what they could expect to receive if the IVA went ahead but also to enable them to compare the outcome with a bankruptcy. It did set out his assets, stating that Mr Hurst had a 50% share in the Property.  If there was in fact a doubt about what Mr Hurst’s share was, then the statement of affairs would have been incorrect and would have needed to be drafted in a different way.

36.	The substantive paragraph of the letter starts with an expression of Mr Supperstone’s understanding that the Property is jointly owned, which of course, on any footing, it was.  However, the understanding clearly goes further than that. This can be seen from the final phrases of the paragraph (“…and I attach a form of undertaking for your completion and return to me.”) and the terms of the Undertaking and Confirmation itself which describe the 50/50 ownership.  It is to my mind absolutely clear – and I regard arguments to the contrary as having no reasonable prospect of success – that Mr Supperstone is saying that his understanding was that the extent of the joint ownership was 50/50.  This is confirmed when one also has regard to the second sentence (“Surplus funds attributable to [Mr Hurst]’s interest…will be applied…..”): reading the letter with the Undertaking and Confirmation, Mr Supperstone is obviously identifying Mr Hurst’s interest as the share identified in the Undertaking and Confirmation.

37.	The substantive paragraph goes on to say that, in order to effect a sale, it will be necessary to have Mrs Hurst’s co-operation (one aspect dealt with in the penultimate paragraph of the Undertaking and Confirmation), a statement by Mr Supperstone which was clearly correct.  The paragraph finishes with the words “and I attach a form of undertaking for your completion and return to me”.  

38.	The letter invites Mrs Hurst to take independent legal advice regarding the proposal and the Undertaking and Confirmation; and the Undertaking and Confirmation itself contains a statement by Mrs Hurst that she has been advised to take independent advice and has had the opportunity to take that advice.  

39.	In my judgment, it is completely unarguable that the letter dated 1 June 2001 coupled with the signature by Mrs Hurst of the Undertaking and Confirmation gave rise to a contract between her and BDO.  The letter cannot possibly be taken as an offer of any sort let alone one offering to undertake a contractual duty to advise Mrs Hurst.  Further, if any sort of contractual relationship had been intended by BDO, one would have expected letters of retainer and fee agreement, whereas, on Mrs Hurst’s case, the only consideration moving from her was her signing of the Undertaking and Confirmation.  I reject any contractual basis for Mrs Hurst’s claim; there is no prospect at all of her succeeding on it.

40.	Further, in my judgment, it is not possible to construe the letter and the Undertaking and Confirmation as containing any representation by Mr Supperstone other than these:

a.	That he is instructed by Mr Hurst to assist Mr Hurst.

b.	That he understands the ownership of the Property to be 50/50.

c.	That surplus funds attributable to Mr Hurst’s share will be applied to make payments to creditors in accordance with the proposal.

d.	That a sale will require Mrs Hurst’s co-operation.

41.	Mr Supperstone is not to be regarded, in my judgment, as making any of the following representations which are the ones set out in the Particulars of Claim and relied on by Mrs Hurst:

a.	That the Undertaking and Confirmation as drafted was factually correct in so far as it related to the shares of Mr and Mrs Hurst.  

b.	That the Undertaking and Confirmation as drafted was necessary for the purposes of the IVA.  

c.	That BDO was acting in the best interests of Mr Hurst and his family.

d.	That BDO would not request Mrs Hurst to sign a document which was factually incorrect or unnecessary. 

42.	As to a., I fail to see how it can possibly be said that a representation was being made by Mr Supperstone as to the correctness of the 50/50 split when (a) he expressed only an understanding that that was the position (b) he sought Mrs Hurst’s signature to a document expressed as a confirmation and (c) in relation to which he twice drew attention to the need for independent advice.  It is particularly remarkable, if Mrs Hurst did not agree that she was only a 50% owner, that she signed this document in those circumstances when, as Registrar Jaques found, she knew what it meant; remarkable, at least, unless her action can be explained as simply doing what her husband asked but issues of undue influence are not before me.  As to those, see at paragraph 31ff of the judgment of Clarke LJ on Mrs Hurst’s application for permission to appeal from the decision of Mr Briggs.
 
43.	As to b., I do not understand how the letter and the Undertaking and Confirmation can be read as a representation that the Undertaking and Confirmation as drafted was necessary.  If Mrs Hurst was owner of 50% only of the Property, then Mr Hurst’s statement of affairs ought properly to have reflected that.  Furether, it would have been correct and appropriate for Mrs Hurst to confirm it and thus correct and appropriate for the Undertaking and Confirmation to take the form which it did.  Mr Supperstone, in presenting Mrs Hurst with the Undertaking and Confirmation did so on the basis of his understanding of the beneficial ownership as expressed in the letter dated 1 June 2001.  He gave Mrs Hurst the clearest opportunity to correct any misunderstanding but she did not do so.  I do not see any ground on which Mrs Hurst has an arguable case on this point.  Mr Hurst makes great play in his submissions on a passage from a book and the acceptance by Clarke LJ of a submission by Mr Hurst to him, the effect of which is to show that it was not necessary for the purposes of the IVA to say that Mrs Hurst owned 50%: it would have been enough for her to confirm that, for the purposes of the IVA, she agreed that 50% of the equity could be utilised under the proposal.  I am not sure that the passage in the book says quite what Mr Hurst submits it says but  do not think I need to agree or disagree; still less do I need to disagree with what Clarke LJ said in what I think was something of an aside in his judgment.  I do not need to do so because, even if it was not necessary it was, as I have said appropriate in the light of Mr Supperstone’s understanding.  That is enough to dispose of this point.  

44.	But even if it were not, I perceive another difficulty: if Mrs Hurst had simply given the more limited confirmation which she now says is what she should have given, that would have left Mr Hurst’s proposal facing problems.  Mr Hurst would be saying that he owned 50% whereas Mrs Hurst would be making no such admission.  Creditors might well want to know the true position in order to compare the outcomes of an IVA and a bankruptcy.  Moreover, Mr Supperstone would find himself in an impossible position of conflict if he owed any duties to Mrs Hurst since he would be faced with conflicting claims as to ownership from two persons to whom he owed duties – Mr Hurst his client and Mrs Hurst because of some tortious duty alleged by her.

45.	It is not alleged that the understanding stated was not genuine.  Indeed, Mr Supperstone would have no source of knowledge other than Mr Hurst and it is an inevitable inference (unless Mrs Hurst produces evidence to the contrary, which she has not) that Mr Supperstone gained his understanding from Mr Hurst who, indeed, all along was asserting a 50% share.  Mr Supperstone says in his evidence in support of the application before Master Bragge which has not been challenged that he gained his understanding about joint ownership from Mr Hurst.  The inference is also one which Clarke LJ also considered was a reasonable one: see paragraph 34 of his judgment. 

46.	 I also note paragraph 43 of the judgment of Peter Smith J where the judge records that Mr Supperstone had not, for the purpose of preparing his nominee’s report, investigated Mr Hurst’s circumstances or his statement of affairs and was unable to verify the statement or declaration made by Mr Hurst.  I do not rely on that for the purposes of my decision since evidence about the nominee’s report is not before me, but if it is correct, it would be a further demonstration, if that were required, that Mr Supperstone was simply taking Mr Hurst’s statements about ownership at face value and not making his own enquiries so that his understanding was therefore both genuine and reasonable.

47.	As to (c), I again fail to understand how it can be said that Mr Supperstone was making any such representation.  I doubt that he was even representing that he was acting in the best interests of Mr Hurst – there is nothing to suggest that he gave advice to Mr Hurst about the merits, rather than the mechanics and drafting of the proposal, of the proposed IVA.  In any case, the confirmation by Mrs Hurst that Mr Hurst had 50% when on her present case he had less was a benefit to Mr Hurst, or at least to his estate, since it showed his assets at the higher level.  I can see no argument for saying that an insolvency practitioner who acts for an individual in relation an IVA proposal for that individual owes, simply by virtue of his so acting, a duty to him let alone to his family to act in the best interests of his family.   Similarly, I can see no argument that by writing the 1 June 2001 letter and attaching the draft Undertaking and Confirmation, Mr Supperstone was making any representation to Mrs Hurst at all.  

48.	As to (d), I would accept, at least for the purposes of this application, that BDO should not request Mrs Hurst to sign a document which Mr Supperstone knew or believed to be factually incorrect or unnecessary.  I would not, however, accept that BDO should not invite Mrs Hurst to sign a document which Mr Supperstone understood to be correct and appropriate even if it subsequently turned out to be incorrect and unnecessary.  Indeed, I would not even accept that BDO should not invite Mrs Hurst to sign a document about which Mr Supperstone was uncertain when (a) he sent it under cover of a letter simply setting out his understanding and (b) invited her in two places to take independent legal advice.  It was for Mrs Hurst to disagree with Mr Supperstone’s expressed understanding and to decline to sign something which she knew to be untrue.

49.	In my judgment, the letter and the Undertaking and Confirmation did not make the representations which it is alleged by Mrs Hurst were made and on which her whole case depends.  My decision goes further than that, however.  I do not consider that there is a real prospect of success of persuading a judge the contrary.  Accordingly, the hurdle under CPR 52.3(6)(a) is not met.

50.	Those conclusions are not, in my judgment, altered, even to the extent to give rise to a real prospect of success, by the fact (which is any event disputed by BDO) that Mr Supperstone or Ms Banwell were aware that Mrs Hurst would not be taking legal advice.  It was her right to decline to do so.  But that does not alter the fact that she was invited to do so, and the fact that she was invited to do so is relevant to confirming, if confirmation were needed, that Mr Supperstone was not making any representation – certainly not any representation on which she should rely – or undertaking any duty of care. As to undue influence, see paragraph 42 above. 

51.	That is not quite an end of the discussion since I have looked at the case from the view-point of the Particulars of Claim.  Those appear to base Mrs Hurst’s claim on misrepresentation and do not set out her case in the way conventionally adopted in negligence actions (ie by pleading a duty of care, breach or duty and damages). The case is, in reality, a negligence action and it was on that basis that BDO addressed Master Bragge and the way in which he dealt with the case in his judgment.  The case might therefore more properly be put this way (and as it was addressed by BDO before the Master):

a.	BDO owed a duty of care to Mrs Hurst in relation to statements made to her.

b.	BDO made the statement alleged.

c.	The statements were untrue.

d.	BDO knew or ought to have known that the statements were untrue.

e.	Mrs Hurst relied on those statements.

f.	Her reliance was reasonable.

52.	I do not propose to address the first of those but will assume for the purposes of argument that the three components necessary to establish a duty of care (proximity, foreseeability of loss and “just and reasonable” to impose) are present.  I very much doubt that such a duty does, in fact, exist (although, of course, the other causes of action eg deceit might exist in any particular case where misrepresentations are made).  However, in relation to persons in the position of Mr Supperstone and BDO, one must be careful not to extend the duty beyond its proper scope and, because the matter is not pleaded this way, it is not easy to know precisely what is alleged.  I would, however reject as wholly unsustainable the proposition that there was some general duty to advise.  The most that I would be prepared to accept would be a duty to take reasonable care in making such representations as are made.  Since none of the representations which are relied upon were, in my judgment, made (for the reasons given above), it follows that there has been no breach of any duty.  

53.	Moreover, even if they had been made, they were qualified in two places by the reference to independent legal advice.  That makes it impossible, I consider, for Mrs Hurst to argue that any representation was intended to be acted on.  I do not suggest that a person making a deliberate misrepresentation in the hope of tricking the misrepresentee could escape liability by inviting the misrepresentee to take legal advice.  But on the facts of the present case it could at best from Mrs Hurst’s point of view be argued that Mr Supperstone should have investigated the ownership position further  (I do not, by raising this point, suggest that I think that he should have done so) and, in those circumstances, the invitation to take independent legal advice is enough to prevent Mrs Hurst saying that the representations (if contrary to my judgment any was made) were intended to be relied on.  Like the first point, I regard this point as so clear that it would form another reason for refusing permission to appeal.

54.	Accordingly, I reach the same conclusion as Master Bragge and, although at greater length, for very much the same reasons.  He made a decision.  The task for me is not to decide whether I agree with that decision but to decide whether Mrs Hurst has a reasonable prospect of success in showing that the Master’s decision (not simply his reasoning) was wrong.  In my judgment, she does not.  In giving my reasons in my own language I have, I hope, dealt with all the criticisms which Mr Hurst had of the Master’s judgment.  

55.	There is, however, one criticism which I do deal with for completeness.  The Master said this in relation to the issue of ownership decided by Registrar Jaques and on appeal by Mr Briggs:

“The judge on appeal did not upset that finding made by the learned Registrar and further the Lord Justice [Clarke] on the application for permission to appeal did not criticise the finding of fact of the Registrar that the written statements made by Mr and Mrs Hurst were compelling factors in the assessment of the evidence.”  

On that basis, the Master found it very difficult to conceive how it could be said that there was reliance on Mr Supperstone.

56.	Mrs Hurst, in her Grounds of Appeal (which Mr Hurst developed to some extent but which explain sufficiently the thrust of the submission) says as follows: 

a.	The three grounds of the Registrar’s decision on beneficial ownership are identified and it is correctly stated that Mr Briggs did not uphold the first two grounds (declaration of trust; intention of 50/50 ownership at inception).  

b.	It is then said that the Registrar in making his findings about Mrs Hurst’s state of knowledge, cannot have intended to hold that she knew that the document she was signing might “subsequently operate as a proprietary estoppel in the event of failure of the IVA”.

c.	Mr Supperstone was in effect representing to her that if she wanted Mr Hurst to proceed with the IVA it would be necessary for her to sign away 35% of her interest whether or not the IVA came to fruition.  She does not believe that the Registrar in making his findings of fact about her state of knowledge was intending to hold that by signing the undertaking she knew that she would irrevocably be signing away 35% or her beneficial interest.

d.	Finally, the passage from Master Bragge’s judgment set out above is therefore factually incorrect and contrary to the evidence.  The relevant finding was upset by the judge on appeal.

57.	As to that, the Master was, in my judgment,  absolutely correct in what he said in that passage and nothing which Mr Hurst submitted to me, including taking me to the judgments of Registrar Jaques and Mr Briggs, provided any indication to the contrary.  The relevant finding was certainly not upset by the judge on appeal.   

58.	Moreover, the analysis of what the Registrar meant by his findings seems to me to miss the point.  Whatever else he may or may not have meant, the Registrar clearly held that Mrs Hurst knew that she was signing a document in which she asserted that she was a 50/50 owner with Mr Hurst, not that she was prepared to accept for the purposes of the IVA that she was a 50/50 owner.  Moreover, she acknowledged having read the draft IVA proposal (whether or not she actually did so, I do not know) and if she had done so she would have seen a clear statement in it, due to be signed by her husband that he and she were 50/50 owners.  

59.	In the light of all of the above, I refuse Mrs Hurst permission to appeal from the decision of Master Bragge.

Appeal from decision of Registrar Jaques dated 17 May 2006
60.	On 17 May 2006, Registrar Jaques had before him an application by Mrs Hurst to stay the possession order.  It will be remembered that this application was made in respect of a possession order made a long time previously and in respect of which Mr Hurst, as Mrs Hurst must have known, had been making a series of applications for a stay.  By 17 February 2006, it may have looked to Mr Hurst that he had reached the end of the road.  His action against BDO had been struck out and, although there was an appeal pending following my grant of permission, his hopes were finally dashed by Peter Smith J in April.  I had dismissed his applications for a stay and he had not yet got in front of Neuberger LJ to obtain a limited stay until the outcome of the April hearing before Peter Smith J.

61.	Mrs Hurst had not been a party to Mr Hurst’s stay applications.  Neither he nor she had taken any steps to join her to such applications.  Significantly, her own action against BDO had been issued only on that day, 17 February, and there had been no attempt to rely on her own claim against BDO to bolster Mr Hurst’s assertion that there would be money available to purchase the Property and his own claim that the possession order should be stayed.  

62.	What happened then was that, soon after issue of her claim against BDO, Mrs Hurst (no doubt at Mr Hurst’s urging) applied on 24 February 2006 to Registrar Rawson for a stay of the possession order.  Mr Hurst says that it was a very short hearing in which the Registrar was more concerned about the position of Mrs Hurst’s mother than anything else and that due to a shortage of time he did not give Mr Hurst the chance to develop his argument.  He had wanted to explain how strong his wife’s case against BDO was, as he saw it.  It would follow, he would have said, that success against BDO would have led, if not to untold riches, to a tidy sum sufficient to enable Mrs Hurst to buy-out Mr Hurst’s share from Mr Supperstone and that the possession order should be stayed until resolution of the proceedings against BDO.

63.	There is dispute about how long the hearing before Registrar Rawson took; but whether it lasted for 20 minutes or 45 minutes does not seem to me to matter.  There is an attendance note made by Taylor Wessing (Mr Supperstone’s solicitors) which reveals the following sequence.

64.	First, there was a discussion concerning Mrs Hurst’s mother’s health and circumstances.  That was followed by a request from Mr Hurst for a stay until 28 days from the first case management conference in Mrs Hurst’s action against BDO, Mr Hurst mentioning the case of Gorman to the Registrar.  Counsel for Mr Supperstone then addressed the Registrar, expressing sympathy for the plight of Mrs Hurst’s mother but pointing out that she did not live at the Property.  Counsel noted that Mrs Hurst was not seeking a short stay of the possession order, but an extended stay based on a fanciful claim and she went on to make a series of submissions which I do not propose to list.  The Registrar first of all, according to the note, “commented that he agreed that Mrs Hurst’s claim was not as strong as the underlying claim in Gorman”.  He felt that Mrs Hurst should not be entitled to a stay until the claim against Mr Supperstone was concluded, particularly as she could have brought her case at the same time as Mr Hurst’s claim.  He did, nonetheless, order a short stay for 10 days, not on the basis of Mrs Hurst’s claims against BDO but because of his concerns about Mrs Hurst’s mother.  He said that Mrs Hurst should, if she so wished, appeal his decision to grant an extension only to 6 March 2006.

65.	Mr Hurst then said that he wanted to take the Registrar though a letter which he has sent to Taylor Wessing in order to show him that his wife had a good case against BDO.   The Registrar said that he did not want to go into the level of detail that Mr Hurst was seeking. He was not convinced that, having reviewed the documents, Mrs Hurst’s action had a reasonable prospect of success (something in which events have now proved him to be correct).

66.	Mr Hurst objects to this attendance note as a proper record of the hearing.  He has not, however, identified anything in it which he says is incorrect and I am sure that it gives the flavour.  What is beyond dispute is that the Registrar granted a stay only to 6 March and it is clear that he did so out of concern about Mrs Hurst’s mother, rejecting the submissions based on Mrs Hurst’s action against BDO.

67.	Mrs Hurst did not seek to appeal that decision.  Mr Hurst says that she did not need to do so because, soon afterwards, on 7 March, Mr Hurst obtained a stay of the possession order from Neuberger LJ.  After that stay, matters rested until the hearing before Peter Smith J and his decision of 7 April.  After judgment on the strike-out application, Peter Smith J dealt with Mr Hurst’s application to stay the possession order which Neuberger LJ had directed to be dealt with by him.  I do not have any record of the submissions made to the judge or whether Mrs Hurst was present too.  What is clear, however, is that Mr Hurst knew perfectly well of Mrs Hurst’s action against BDO.  He should, so it seems to me, have raised before Peter Smith J all the points on which either he or Mrs Hurst wished to rely in resisting a possession order.  

68.	As I have said, Peter Smith J ordered that the Property be vacated by 28 April 2006.  However, Mr Hurst sought permission to appeal the decision of Peter Smith J with an application for a stay of the possession order in the meantime.  The application for permission was finally dismissed at an oral hearing on 2 May.  Mr Supperstone had not sought to enforce the possession order on 28 April, no doubt considering that it would be unwise to do so at least until the result of Mr Hurst’s application to the Court of Appeal was known.  Having lost in the Court of Appeal, Mr Hurst was then faced with the possession order being enforced.

69.	There was nothing left which Mr Hurst could do.  So, instead, Mrs Hurst applied for a stay of the possession order.  As to that, see paragraphs 13 and 14 above.

70.	Registrar Jaques dismissed the application for a stay of the possession order on two grounds.  First, he determined that the matter had been decided by Registrar Rawson on 24 February and that there had been no change of circumstance in between.  Accordingly, he said that there was a res judicata.  Whether or not it is strictly correct to use the phrase  res judicata, it is certainly the case that the court will decline to exercise its discretion to order a stay where an application has already been made and dismissed, and there has been no material change of circumstance.  To renew an application in such circumstances is regarded as an abuse of process.

71.	Secondly, the Registrar considered the merits of the stay application in case he was wrong on abuse and decided that he would not order a stay in any case.  Mr Hurst submitted to the Registrar that he should look at the merits of Mrs Hurst’s claim against BDO, citing Gorman.  He submitted that the Registrar should at least await the outcome of a decision on strike-out from Master Bragge (just as Neuberger LJ had stayed the possession order pending the decision of Peter Smith J in relation to the strike-out of his claim against BDO).  The Registrar nonetheless considered that he had a duty to consider the merits (without in any way attempting to try the application before Master Bragge).  I see nothing wrong with that approach.  

72.	In that context it is important to understand what precisely it was that Neuberger LJ said.  I had refused a stay.  Mr Hurst then issued an application for permission to appeal my refusal.  He, of course, wanted a stay pending appeal otherwise, his appeal would not have had a lot of point.  Neuberger LJ addressed the question of whether I was wrong in refusing a stay, even though the matter was essentially one of discretion.  He decided that Mr Hurst had a real prospect of success.  He set out the arguments which might indicate that I was wrong in my decision.  He said that it was doubtful that the arguments would be sufficiently strong to attack or undermine my reasoning but asking himself the question whether there was a real prospect of success on the appeal, he answered his own question in this way: “I think the answer is close to no, but it is not no”.  

73.	Having reached that conclusion, he gave a limited stay to enable the decision from Peter Smith J to be reviewed but this was in the context of a proposed appeal proceeding.  It was designed to preserve the position pending appeal if one were ever to happen.  But were Mr Hurst to lose his appeal in front of Peter Smith J, in reality there would be no basis further to suspend the possession order so that the appropriate course was to give the limited stay.  In other words, Mr Hurst obtained his stay until April not because I was wrong, but because he had a reasonable prospect of success in saying that I was wrong.  

74.	After examining the merits, Registrar Jaques concluded that it would not be appropriate to order a stay.  He concluded that it could not be said that Mrs Hurst’s claim against BDO was other than a very weak case.  Even without pre-judging the case, that was a conclusion to which he was entitled to come and is certainly one to which I would have come on that occasion and one which I have reached in this judgment; indeed, the case is not just very weak but is to be dismissed.  This was, as the Registrar put it, a million miles from Gorman where on the pleadings there was a strong case.  The Registrar was also influenced, as was Registrar Rawson, by the consideration that Mrs Hurst had not brought her proceedings against BDO earlier.  I share some sympathy with the views which each of them expressed.  One does not, however, need to go quite as far as Registrar Jaques in saying that Mrs Hurst should have brought her proceedings earlier, even at the same time as Mr Hurst.  But I do think that it is a circumstance which Mr Supperstone was entitled to have brought into account in the exercise of the court’s discretion.

75.	Finally, Registrar Jaques made a comparison of the situation facing him and that facing Neuberger LJ.  The two situations are not, I consider parallel, not, perhaps, for precisely the reasons the Registrar gives, but not parallel all the same.  I have explained the context of Neuberger LJ’s judgment.  The decision for the Registrar was to be made in a context similar to that in which I had made my decision.  My decision was not said by Neuberger LJ to be wrong, merely that it was arguably wrong.  But just as I made a decision, so too Registrar Jaques saw it as his duty, correctly I think, to make a decision.  He may have been right, he may have been wrong.  His decision has been appealed to me.  And just as there was an application for a stay to Neuberger LJ pending the appeal from me, an application was made to Rimer J for a stay pending an appeal from Registrar Jaques.  In contrast with Neuberger LJ, Rimer J dismissed the application.

76.	I have no doubt that the decision on the merits which the Registrar made was well within the ambit of a reasonable decision and is, indeed, one which I would have made myself.

77.	Accordingly, whether or not Mrs Hurst’s application was an abuse of process, her appeal against the result of the application for refusing a stay would, were it pursued, fail.  In the light of events since May, an appeal against refusal to stay the possession order is academic because the property has now been purchased by the Hursts and is occupied by them again.  However, Mrs Hurst says that the Registrar’s costs order was incorrect and to demonstrate that, she needs to show that the merits of the appeal are sound.  Having rejected her case on the merits, it is clear that she must pay the costs, at least on the standard basis.

78.	The Registrar, however, awarded costs on the indemnity basis.  His reason for doing so was that he regarded Mrs Hurst’s application as an abuse of process in the light of Registrar Rawson’s decision on exactly the same point some weeks before and in the light of an absence of any change in circumstance.

79.	In my judgment, he was right to reach this conclusion.  In spite of Mr Hurst’s protestations, it is clear that the merits of Mrs Hurst’s claim against BDO were put to Registrar Rawson who said that he had seen enough of the papers to arrive at a decision.  He formed the view, absolutely correctly I think, that Mrs Hurst’s case against BDO  was weak and that a stay on the basis of a potential recovery by her was not justified.  Mrs Hurst should, if she did not like that result, have appealed the decision.  That she thought her position sufficiently protected by the stay granted by Neuberger LJ up until the judgment of Peter Smith J is neither here nor there: if her own application justified a longer stay, she should have appealed it or at least attempted to renew it before Peter Smith J.  Accordingly, I consider that Registrar Jaques was entitled to make an order for indemnity costs.

80.	Mr Hurst then submits that, even if the indemnity costs order against Mrs Hurst is to stand, the amount assessed by Registrar Jaques was excessive.  He raises three points on Taylor Wessing’s costs schedule by reference to which the Registrar made his assessment:

a.	The time spent on documents, 11 h 30m, was excessive given that Mr Hurst prepared most of the documents for the hearing.

b.	The solicitors’ charging rates were higher than should be allowed.

c.	Counsel’s fee was excessive.

81.	Since Mr Supperstone did not have representation at the hearing and since I considered that I would benefit from further submission from Mr Hurst, I gave the parties’ liberty, after the hearing, to make written submission about the amount of costs in order to enable me to decide whether Mrs Hurst’s appeal should be allowed in which event I informed the parties that I myself would assess them rather than order a detailed assessment with all the cost that that would entail.

82.	On an assessment on the indemnity basis, costs (whether subject to summary or detailed assessment) will not be allowed which have been unreasonably incurred or are unreasonable in amount.  Any doubt which the court may have as to reasonableness is to be resolved in favour of the receiving party: see CPR 44.4(1) and (2).  Where costs are assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue: see CPR 44.4(2)(a).  There is no similar exclusion in the case of indemnity costs.

83.	As to time spent on documents, Taylor Wessing, in their written submission after trial, make three points:

a.	They disagree with Mr Hurst’s assertion that he prepared all of the documents relating to the hearing.  They point out that they prepared Mr Supperstone’s witness statement in response to the application together with the relevant exhibit.  

b.	They also say, and I can well believe that this is the case, that a voluminous amount of correspondence was received from Mr and Mrs Hurst during the period from issue of the application to the hearing of the application.  This led, they say, to the witness statement being amended to answer the new points raised in correspondence by Mr and Mrs Hurst.

c.	They also incurred time in considering the application and supporting papers sent to them by Mr and Mrs Hurst.

84.	Taylor Wessing therefore conclude that 11h 30m was a reasonable time to have spent on documents.  I do not doubt that 11h 30m was actually spent: that is what Taylor Wessing say they spent and there is nothing to show that they did not do so.  If there is any doubt about the reasonableness of the time spent and if I were assessing costs myself, I would resolve the doubt, as the rules direct, in favour of Mr Supperstone.   There is accordingly, nothing to indicate any error of principle in this aspect of the Registrar’s assessment.

85.	As to the rates charged by Taylor Wessing, it is to be noted that Mr Hurst relies on the guidelines found in the White Book at p 1412ff.  These date from January 2005 whereas the costs in the present case were incurred in 2006.  It must be remembered that these guidelines are precisely that and are no more than guidelines.  Assuming against Mrs Hurst for the moment that it was appropriate for Mr Supperstone to appoint a firm such as Taylor Wessing (it is Mr Hurst’s submission that it was not), there is nothing to suggest that the rate of charging is out of line with similar City firms carrying out commercial/corporate work.  The guideline rates from January 2005 are not determinative.  Again, any doubt should be resolved in favour of Mr Supperstone.  There is insufficient material to show that the Registrar was acting outside the proper range of his discretion in relation to Taylor Wessing costs on the assumption (as I say, challenged by Mrs Hurst) that it was appropriate to instruct a firm of this sort.

86.	Mr Hurst submits that Mr Supperstone should not have instructed Taylor Wessing.  His primary submission is that, since Mr Supperstone’s office is in Birmingham, he should have instructed a Birmingham solicitor.  But Mr Supperstone previously worked in London and the file is still run from London.  It was perfectly reasonable, I consider, for the file in this complex litigation to have been retained in London when Mr Supperstone moved there.  The issue then is whether it was appropriate to employ Taylor Wessing rather than a London firm away from the commercial/corporate City area.  If it was not, then Taylor Wessing should be allowed to charge only the rate which a more appropriate firm would have charged.

87.	Mr Hurst relies, in this context, on a decision of Senior Costs Judge Hurst in Adam Musa King v Telegraph Group Ltd (which was a libel action) where, at the end of his judgment, the Judge examined the hourly rates of solicitors and said this:

“….the issue is, in my view, easily resolved.  City rates for City solicitors are recoverable where the City solicitor is undertaking City work, which is normally heavy commercial or corporate work.  Defamation is not in that category, and, particularly given the reduction in damages awards for libel, is never likely to be.  A City firm which undertakes work, which could be competently handled by a number of Central London solicitors, is acting unreasonably and disproportionately if it seeks to charge City rates.”
88.	I would not dissent from a word of that.  I do note, however, that the Judge referred to the solicitor acting unreasonably and disproportionately: he was dealing with an assessment on the standard basis whereas the present case concerns indemnity costs where proportionality is not relevant and where doubt about reasonableness is to be resolved in favour of the receiving party.

89.	In an ordinary case, there would be considerable force in what Mr Hurst submits.  But the present case is not an ordinary case and it simply not possible to divorce Mrs Hurst’s application from Mr Hurst’s litigation.  Given the complexity which Mr Hurst had generated over many years of relentless litigation, I again cannot say that the Registrar was acting outside the proper range of his discretion in allowing Mr Supperstone to recover costs on the basis that it was reasonable to employ Taylor Wessing.  I do, however, confess that were I myself assessing these costs, I would entertain doubt about the reasonableness of the hourly rate.  But it would be a doubt and no more: I would not hold the view that the charging rate was so high as to be, of it very nature, unreasonable.  The doubt would be resolved in favour of Mr Supperstone.

90.	As to Counsel’s fees, Mr Hurst submits that the fee is excessive having regard to the length of the hearing and the seniority of counsel.  He is, of course, correct that the fee is significantly in excess of the guideline.  However, that is a guideline for an ordinary case but. unfortunately, preparation to meet Mr Hurst’s applications (or that, in this case, of his wife but conducted by him for her) is not preparation for an ordinary case.  My own judgments in relation to possession applications show how complex matters really are and why litigating against Mr Hurst is a time-consuming business.  Counsel, according to information provided by Taylor Wessing, spent well over 14 hours preparing for and attending the hearing before the Registrar: that included liaising with Taylor Wessing on the preparation of the witness statement and the bundle and in preparing a comprehensive skeleton argument.  I see not reason to think that that is not so.  On the basis of that work, the Registrar clearly acted within the range of his discretion.  Moreover, were I assessing these costs, I would not entertain any doubt that the fee was proper and should, on the indemnity basis, be allowed in full.

Conclusion
91.	I reject Mrs Hurst’s claim that costs should not have been awarded against her on the indemnity basis.  

A final word
92.	I have on a previous occasion, as has Peter Smith J, expressed the hope that Mr Hurst might recognise that the various claims against Mr Supperstone and BDO have no merit and, as Peter Smith J put it, that he might put all this behind him and get on with his life.  He is, I am afraid, unable to see this case in a rational light.  That is one reason for the concern I have in his representing Mrs Hurst and, more significantly, effectively advising her about her claims and her litigation.  I therefore reach the decision refusing permission to appeal from the order of Master Bragge without regret.  I would hope that even Mr Hurst would recognise that his wife’s claim against BDO was weak.   If she had been able to pursue it, she would thereby expose herself to an adverse order for costs were she to lose her action thus putting in jeopardy the occupation of the home which Mr Hurst has spent so much energy over a substantial period of time in preserving, finally achieving security by the purchase of the family home from monies obtained from Mrs Hurst’s mother.   It would be nothing short of a family tragedy if Mr Hurst’s campaign against Mr Supperstone and BDO were to have that result especially if she were to proceed on the basis of advice and assistance of Mr Hurst who cannot, I fear, come to this matter with an objective assessment of what is in her best interests.  This factor has, of course, played no part at all in the decision which I have come to.