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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Bhojani & Ors v Harris & Ors [2005] EWHC 2390 (TCC) (31 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2005/2390.html Cite as: [2005] EWHC 2390 (TCC)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St Dunstan's House, 131 – 137 Fetter Lane, London, EC4A 1HD
		31 October 2005

 


HH Judge Thornton QC:

Introduction

1. I am handing down this judgment to the parties on 31 October 2005 having, on 27 October 2005, heard and concluded the hearing of the claimants' application to adjourn the hearing of a series of applications that had been listed for three days on Friday 4 November and Monday and Tuesday 14 and 15 November 2005. The hearing was held at short notice and only limited time was available for the hearing. The matter was of some urgency and I informed the parties of my decision and the brief reasons for reaching it. There was insufficient time to deliver an oral judgment so I informed the parties that I would email them my judgment on Monday 31 October 2005 to enable either of them to lodge a notice of appeal if so advised.
2. My decision announced on 27 October 2005 was that I would allow the application in part by varying the dates for the hearing over 2 days on 15 and 16 November 2005 and relisting 4 November 2005 for a PTR and Directions Hearing. I indicated that this was very much a second choice direction but was necessitated by the hearing dates for the forthcoming appeal (A1/2004/2471 - 2475) which is now listed for 2 days over 6 and 7 December 2005 which I concluded should have available to it my decision on the applications.
3. My reasons were, in summary, that it was desirable in the interests of justice for the applications to be heard and determined before the appeal is heard. However, the evidence, including any reply evidence, needed for the hearing of the applications cannot fully or fairly be finalised until after 6 and 7 December 2005. Had it been possible for the appeal to be heard no earlier than late January 2006, the applications could be heard after a fair opportunity has been given to prepare the evidence and for a hearing in early January then to take place. Unless and until such a timetable is possible, the lesser of two injustices, I decided, would be to hear the applications before the parties are properly ready for them rather than the appeal being heard before the applications. This judgment explains my reasons for reaching this conclusion.
4. It was clear from the claimants' counsel's submissions at the hearing of the claimants' adjournment application on 27 October 2005 that the claimants were seeking, as part of or in addition to their application to adjourn, a variation of my procedural orders made on 18 May 2005, 27 July 2005, 7 October 2005 and 21 October 2005 whose combined and successive effect was that the applications listed for hearing on 5, 14 and 15 November 2005 should be heard and determined before the hearing of the claimants' appeal. On 27 October 2005, the claimants additionally sought an order to the effect that these applications should now be heard after the appeal had been heard and determined and that the Court of Appeal should rule on what evidence should be admitted, and what applications should be allowed to proceed, as part of the hearing of the claimants' appeal.
5. Thus, this judgment sets out my reasons for:

1. Allowing the claimants' application to adjourn the hearing of the applications in part. The hearing fixed for 4, 14 and 15 November 2005 would be refixed with hearing dates on 15 and 16 November 2005 and the previously fixed hearing date on 4 November 2005 would be vacated and replaced with and confined to a PTR and directions hearing for the hearing on 15 and 16 November 2005; and

2. Dismissing the claimants' applications to adjourn the hearing of the applications either generally until a date to be fixed after the hearing and determination of their forthcoming appeal or until a date no earlier than the beginning of the January term 2006.

The Action

6. The action arose out of the property dealings of two men, Neil Hughes-Narborough ("Neil") and Subhash Thakrar ("Subhash") between 1983 and 1989. These dealings, 15 years later, led to a complex trial involving 5 separate groups: Subhash, 7 family members of Subhash, Neil's estate, Suburban Properties Ltd ("SPC") and Barbara Harris being Neil's successor of his sole practitioner solicitor's practice. The property dealings fell into three successive stages: (1) 1983 – 1984, the development of 9 properties forming part of Neil's father's estate which Neil was still in the process of winding up and which he wrongfully appropriated and jointly developed with Subhash; (2) 1984 – 1987, the development of 19 properties wrongfully appropriated from SPL by Neil along with at least 11 other property dealings; and (3) the sale at a gross undervalue to Subhash's cousin, Ramila, of the entire remaining property portfolio of SPL. Ramila was one of the 7 family members who had also benefited, or apparently benefited, from the will properties development. She had also appeared to benefit from many of the property dealings in the second group of property dealings.
7. It was of considerable significance that SPL was a family property company owning low value freeholds in South London which was entirely under the control of Neil who treated these properties as if he owned them personally. In fact, he had a minority shareholding in the company whose other shares were held by family members who were defrauded by the development and sale of these properties by Neil and Subhash. Neil was also a solicitor who had fallen on hard times and who was able to keep up a front of financial respectability by using, or rather abusing, part of the proceeds of sale of initially the will properties and then the SPL properties. Subhash was an accountant and in addition to the informal property partnership his firm audited Neil's firm's accounts for Law Society accounting purposes. Two of Subhash's brothers, one of whom is a party to this action, worked for Subhash's firm and on the auditing work of Neil's firm, Hughes-Narborough and Thomas.
8. It was also of considerable significance that Subhash acted on behalf of a large and not wholly identified group of family members in undertaking investments and property dealings on their collective behalf. The 7 family members involved at one remove in the initial property dealings involving will properties were 7 such family members.
9. The action involved three groups of claims. SPL was claiming several million pounds from Subhash as a result of the conversion or misappropriation by him of its property portfolio. No claim for the return of the properties was made because it appeared that the portfolio had been transferred into Ramila's name and then sold onto a third party purchaser for notice for value and were therefore no longer recoverable.
10. The second group of claims was made by Subhash against Neil's estate for substantial allegedly unpaid accountancy fees.
11. The third group of claims was made by the 7 family members against Neil's estate and his solicitor's practice for an account of the proceeds of sale of long leasehold interests in the 9 will properties when these had been sold, following the redevelopment of the properties, to third parties. 5 of those family members constitute the appellants in the appeals brought in relation to the dismissal of their claims against Neil's estate in relation to these properties.
12. The various actions were all ordered to be tried together and all evidence adduced in any of the actions was ordered to stand as evidence in all the actions. The trial was made particularly difficult because all parties were desperately short of funds. Indeed, all parties were directed to reveal to all other parties the sums that they had spent and who was funding those funds.
13. The trial opened in March 2003 but was soon adjourned for several months because a huge amount of forensic accountancy evidence was served just before the trial which formed the basis of the analysis of the property transactions in question. The pleaded issues, involving all parties including the 7 family members, were ultimately to be derived from the pleadings in all actions, the detailed accountancy evidence and the schedules of property dealings prepared by the forensic accountants and submitted in evidence by way of detailed CPR 35.12 statements. Thus, it is necessary, when considering what issues and allegations were pleaded in the claims and defences to the claims advanced by the 7 family members against Neil's estate, to consider all pleadings in the conjoined actions, the expert evidence and the list of issues submitted before the trial which were the issues that it was agreed by all parties the court had to answer. This approach to the trial was set out in a detailed ruling I delivered when directing an adjournment of the trial, a ruling upheld by Hale LJ in a detailed ruling in refusing Neil's estate permission to appeal. These rulings can helpfully be considered if further detail as to the nature and content of the pleaded issues is being considered.
14. The relevant findings following the trial may be summarised as follows:

"1. Subhash, using family resources, entered into a joint venture with Neil, using his family resources with the object of earning a profit for the family. These resources were used pursuant to the wide authority given him by family members to use their pooled resources for communal investment purposes.

2. The chosen vehicle, property development, involved a need for someone to become the registered proprietor of property developed with the assistance of those pooled joint venture resources which in turn contained the pooled Thakrar family resources. The registration was necessary to enable long leases to be created and granted, a necessary step to the joint venture investment vehicle realising its profit earned from the development.

3. Each family member had given Subhash unqualified authority to use family assets and collect profits earned from those assets. That authority extended to authorising him to instruct (Neil's firm) to hold proceeds of sale from these leases to Subhash's order. Subhash directed (Neil's firm), pursuant to that authority, to use the proceeds towards the joint venture pot so as to enhance further the family investment in this mini property development business created by the joint venture.

4. Thus, Subhash was the legal owner of the Subhash/Thakrar family interest in the joint venture development pot which was held by (Neil's firm) as a fiduciary for those constituting the joint venture developers. (Neil's firm) had a duty to account to Subhash for the Thakrar interest in the pot and, no doubt, at second remove around the Thakrar family table, Subhash had a sub duty to account to individual family members for the individual shares in that share released to Subhash." (Judgment, paragraph 165).

5. Subhash acted fraudulently and dishonestly in assisting Neil to defraud SPC of its portfolio.

15. Thus, the 5 family member appellants whose actions went to trial had to establish that he or she had contributed to the pot used by Subhash in providing his share of development funds and then seek an account from Subhash for his or her net share of the development. There was no evidence as to the size of each family member's contribution and no documents were disclosed as to the accounts of the family members' contributions or accounts held for family members or of Subhash's property dealings despite Subhash's acceptance in evidence that such accounting documents had been kept.
16. The 5 family members challenge the findings leading to the dismissal of their claims on appeal on four successive grounds:

1. Each gave Subhash limited authority to acquire, using his or her funds, one particular will property and to instruct Neil's firm on his or her behalf to undertake the conveyancing transaction and account directly to that family member for the proceeds of sale without deduction for the costs of renovation incurred by Neil and Subhash.

2. None of the five family members knew of the Subhash/Neil joint venture or that the proceeds of sale of the will properties were used for subsequent property dealings.

3. The use of their funds for subsequent property dealings fell outside the authority each had given Subhash and was not authorised by them.

4. Neil acted dishonestly vis-à-vis Subhash in appropriating will property which had not been distributed to the beneficiaries and also in reinvesting will property proceeds in subsequent transactions.

The 5 family member appellants also contend that the findings made that I have summarised above fell outside the pleadings and the agreed agenda for trial and that Neil's estate's defence should have been ignored and struck out because it depended, if it was to succeed, on establishing illegal conduct by Neil.

17. The findings involving the 5 family member appellants were based on a consideration of the evidence as a whole including the detailed evidence about the joint account; Subhash's evidence including his lengthy series of dishonest and untruthful acts and statements over the years and his frequently dishonest and untruthful answers given in evidence; the knowledge of Neil's firm's accounts directly acquired by Mukesh whilst involved in the annual Law Society's audits of those accounts, including knowledge as to who was and who was not a client of the firm; the failure of family members to assert their claims for up to 15 years from the alleged accrual of their causes of action; the way in which they left the initiation and pursuit of their claims to Subhash; and much other evidence summarised in the judgment.

Ramila

18. Ramila is Subhash's cousin and she was always held out by Subhash from 1983 onwards until the trial in 2003 as being permanently resident in, and a citizen of, Tanzania. She was, however, treated by him as being an equivalent family member to the 5 currently appealing my judgment. She played, or apparently played, a very large role in the transactions, however, since she had transferred into her name 2 will properties, most of the subsequent properties individually developed and, in 1987, the entire portfolio of SPC's remaining properties. She apparently had large sums transferred into accounts in her name by Subhash and she apparently sold on the portfolio to a company apparently unrelated to Subhash but which he is now believed by SPC to hold a controlling interest in. Subhash, allegedly using a general power of attorney, started two actions in her name to recover will property proceeds but never included the other properties and never explained why these proceeds remain uncollected. Subhash also started the actions brought by the other 5 family members.
19. The family members' actions were until about 2 years before trial pursued by Subhash using his solicitors but these were transferred to a separate firm of solicitors for unspecified conflict of interest reasons. All the family members then pursued their respective actions using the same solicitors and as a collective action. However, Ramila did not serve a witness statement, instead a hearsay statement was served by her solicitor setting out what she would say. She was said to be unable to come to England for the trial, to give evidence by video link or to send communications herself to England. The action was eventually struck out against her because her solicitor had come off the record because of his stated inability to obtain instructions and because of her non-attendance at the trial. A costs order was then made against her.

Procedural History of Applications

20. The judgment was handed down in September 2003 and a long series of post-judgment applications was then heard. These included applications for freezing injunctions which were obtained as an adjunct to attempts by SPL and Neil's estate to recover the judgment sum (by SPL) and costs (by Neil's estate) from the proceeds of SPL's former portfolio. These enforcement applications involved charging a property in Ramila's name, the details of which having been obtained by means of a documents disclosure order from the solicitors acting in the conveyance of the portfolio properties in her name. This led to Ramila appearing in court on two separate occasions, on 18 May 2005 and 27 July 2005 since she had been served by the Land Registry with copies of an application for an order of sale of this property and this was her family home. Ramila was not represented, speaks poor English and had, as her McKenzie friend, her brother who also acted as an interpreter. On both occasions, Ramila sought orders from the court setting aside or nullifying the default judgment and the large costs order and to protect her from having her home sold over her head. Mr Jacobs, the appellants' current solicitor who was not acting for them on those occasions, is incorrect in now stating that Ramila's on-going application to set aside the judgment against her was made on the court's initiative. This application was and remains that of Ramila herself.
21. The history of Ramila's application and the steps taken to obtain her detailed evidence are set out in Mr Gwillam's two witness statements. The evidence itself from Ramila is, if accepted, remarkable. In summary:

1. Ramila never has had any involvement in any of the property transactions, did not sign any of the relevant conveyancing documents, never gave any instructions to any firm of solicitors in connection with this action and was never informed about the transactions or the action by anyone.

2. The five family members who are appellants have always known that she has been resident in England since 1990.

3. Mukesh, one of the appellants, was deposing to an untruth in his witness statement of 10 November 2003 when he stated that Ramila was resident abroad and unable to provide funds for her action so that other family members were funding it for the time being. In fact, she was resident in London and was completely unaware of the action.

22. This evidence was prepared by Neil's estate's solicitor. The circumstances in which this occurred are fully set out in his witness statement. Basically, Ramila was unable to obtain legal aid because of her ownership of her modest property and could not afford to instruct a solicitor out of her own resources. Neil's estate's legal advisers could see that, on the basis of what Ramila had stated in court through her brother's interpretation, that she had a prima facie entitlement to have the default judgment set aside and that her evidence required investigation. This appeared only to be feasible if they undertook the investigation and, in court, sought from me permission to take a witness statement from her. I did not raise objection since Ramila indicated that she consented to this course and since I was informed that her brother would be present at any interview to interpret and to ensure that she was not put under any pressure. For reasons explained in Mr Gwillam's witness statements, this process and the necessary checking of details and the obtaining of documents from solicitors who had apparently been acting for her but whom she stated she had never instructed took some weeks to complete.

Significance of Ramila's Evidence

23. Ramila's evidence is of considerable significance in a number of ways. Firstly, it is said to be contested in every particular and I have been informed that 12 separate witnesses are to adduce witness statements to contest it and that a forensic handwriting expert is to be instructed to examine several examples of her handwriting. This evidence, despite the appellants' solicitor's assurance in court on 7 October 2005 that it would be ready in 3 weeks, is now said not to be capable of being served until the end of November 2005. Any evidence in reply will need at least 14 further days to prepare and it will then be necessary for bundles of documents to be prepared and for the necessary cross-examination to be prepared. Thus, the necessary hearing of the applications ought not to take place until the beginning of the January 2006 term at the earliest.
24. The significance of Ramila's evidence is as follows:

1. If this evidence is accepted, it shows that the use of Ramila's name as the vehicle for all the property transactions save for 5 of the will transactions was a sham and unauthorised by her. This misuse of her name was, or was likely to have been, known about by the 5 appellants and it is difficult to see that this misuse could have been for an honest purpose. Of course, neither Subhash nor the appellants' evidence is yet available.

2. The evidence also shows that the use of Ramila's name in the proceedings that were started by Subhash and continued by the appellants was an apparent abuse of process. The evidence would also put into question the genuineness of the appellants' proceedings and would create a need to consider whether those proceedings might also be an abuse of process.

3. The evidence would also tend to show, if accepted, that the 5 family member appellants, and at the very least Mukesh, knew of the sham and of the dishonest use of Ramila's name in the will property transactions, in the subsequent individual property and portfolio transactions and in starting and pursuing the actions in her name. This would throw into doubt the 5 family member appellants' veracity when giving evidence at the trial when they denied both knowledge of the extensive authority each appears to have given to Subhash and of the use made by Subhash of the proceeds of sale of the will properties. It also would also throw into doubt their denials that they ratified the use of the proceeds of sale in the manner that they were used for and their assertions that Subhash was acting bona fide in their respective sole interests and that Neil had defrauded Subhash in relation to the will properties' proceeds of sale.

4. The evidence, if it was to be accepted and if it remained immune from the appellants' challenge to it, would appear to provide a clear basis for the default judgment to be set aside or declared a nullity and for both Neil's estate and Ramila to obtain a costs order against the five family member appellants since those costs would, on this basis, appear to have been caused by their default in pursuing or participating in the actions in Ramila's name and in the associated actions which they knew Ramila had never authorised. In other words, the appellants would have knowingly participated in a series of nine related actions to which they and Ramila were parties which were all an abuse of process. These actions include the 5 under appeal.

5. On the basis of this evidence, the means would now appear to be available for SPC, Neil's estate and the beneficiaries of William's will to trace or execute against all the properties wrongfully taken from SPC and the beneficiaries. These properties now stand in the name of Glen. These properties would, on the basis of Ramila's current evidence, if accepted, appear to have been dishonestly transferred into Ramila's name in breach of trust and duty and then to have been dishonestly transferred onwards into Glen's name. Ramila never authorised either of these transfers and it is now thought that Glen is a nominee for Subhash. Both transfers and any charges over them are therefore susceptible to being set aside and the properties would be available for tracing remedies at the behest of SPC and the will beneficiaries and for executing against in relation to the judgments in favour of SPC and Neil's estate.

25. I stress, as I stressed during the hearing of the application, that I make no findings about and I express no views as to the veracity or correctness of Ramila's evidence. The family member appellants' solicitor's witness statement, however, makes it clear that the evidence being prepared in reply on behalf of the 5 family members will be extensive, will involve many witnesses and will involve sharp conflicts of the most fundamental nature. The solicitor also points out, correctly, that very substantial sums of money are at stake. The family members' counsel, on instructions, informed me during the hearing that allegations of extortion and blackmail may be involved against Ramila that are relevant to these actions. Handwriting evidence is to be obtained. The adjournment was sought by the family member appellants in order to fairly prepare their replies to what they understandably and correctly consider to be allegations that are being made against them that are of a very grave nature.
26. Once this evidence has been served, it is likely that Neil's estate or Ramila or both will wish to obtain and serve evidence in reply from a number of witnesses. The overall evidence gathering cannot reasonably be completed until mid-December at the earliest.

Use of the New Ramila Evidence

27. Ramila's Application. First and foremost, this evidence is needed to support Ramila's application to set aside the judgment against her and, if it is set aside or declared a nullity, to support her consequential application for costs from the family member appellants. Equally, if the judgment is set aside or declared a nullity, Neil's estate will wish to use this evidence to claim costs or wasted costs from these appellants. These are not, apparently, empty potential applications since the family member appellants were able to raise £250,000 at short notice following an order from Thomas LJ that such a payment into court should be made as a condition of pursuing the appeal. The source of the funds was a named individual who Neil's estate's legal team had never heard of and whose interest in funding the appeals has not, apparently, been explained.
28. These applications by Ramila and Neil's estate must go ahead whatever happens on the appeal. They can only be heard by me as the trial judge. It would be, in my judgment, disproportionate if they were only heard after the appeals if the appeals went ahead without the benefit of this evidence since, if the evidence of Ramila is subsequently accepted when the applications are heard, the appeals would have been heard on a basis which her evidence would have shown to have been an erroneous basis and a possible rehearing of, or an application to re-open, the appeals might then arise.
29. Tracing Remedies. Ramila's evidence, if accepted, would provide good evidence that parties left with unsatisfied judgments for damages or costs and those whose property has been wrongfully taken from them by Neil and Subhash, such as William's beneficiaries, would have a good prospect of successfully tracing their unsatisfied judgments into property transferred into Ramila's name. Many of these properties are now subject to freezing and injunctive relief pending possible tracing actions and I have directed that those currently registered as the proprietors or holders of charges of these properties should be served with notice of the hearing of the intended applications which include an application for a declaration as to the ownership of these properties.
30. Neil's Estate's Abuse of Process Application. Neil's estate wishes to consider applying for an unusual order, namely for the judgment against the family member appellants to be set aside and to be replaced with a default judgment based on an abuse of process perpetrated by those parties in pursuing actions related to actions they were promoting in Ramila's name knowing that she neither had an interest in the subject matter of the action nor had authorised those actions. The family member appellants strenuously challenge my jurisdiction to hear such applications and have applied to strike out the applications. Neil's estate contends that I should only hear the jurisdictional challenge once I have seen the evidence from both sides that would be deployed for and against its application, being the evidence of Ramila and the forthcoming evidence in reply. Thus, I will, when hearing the applications, hear the family members' application to strike out Neil's estate's application to set aside and to enter a default abuse of process judgment instead.

Fresh Evidence

31. Neil's estate has accepted that it would be open to it to apply to the Court of Appeal to allow it to admit Ramila's evidence as fresh evidence. It has taken the view that that application should not be made until the fresh evidence, including the evidence in reply still to be served, is available. Moreover, the evidence will require extensive cross examination and it would be disproportionate to involve the Court of Appeal in an evidence gathering process which would involve at least 14 witnesses and extensive cross examination. Furthermore, the evidence must be deployed at first instance in any event in relation to Ramila's proceedings, the tracing and enforcement proceedings and Neil's estate's abuse of process application. Finally, it contends that it is first appropriate for the trial judge to hear the evidence and consider its effect so as to allow the Court of Appeal the benefit of his findings and to avoid it in having to conduct an extensive evidence gathering exercise itself.

Material Considered in Making this Direction

32. I have had in mind, and have carefully considered, four successive judgments in the Court of Appeal in this case as well as my ruling in March 2003 and my two judgments. The four successive judgments were those of Dyson LJ in dismissing a security for costs appeal application, Hale LJ in dismissing an appeal application relating to my adjournment order, Thomas LJ in allowing fresh evidence to be adduced and in ordering security and Chadwick LJ in standing the appeals out from their originally fixed hearing dates in July 2005. I have also considered with some care the four witness statements lodged in support and in opposition to this application, the skeleton arguments and the other materials lodged in two weighty bundles of documents.

Findings

33. Apparent Delay. At first blush, the adjournment applications appear to have been made too late to be considered. The timetable for the hearing of the applications that the adjournment applications seek to adjourn was set in July to allow for a September hearing. This was adjourned until October at Neil's Estate's application and then, at the family members' application, until early November. From July onwards, I have made it clear that Ramila's setting aside application should be heard in advance of the appeal fixed for early December and I set the three successive hearing dates so as to achieve that purpose. I cannot fault the apparent delay that has occurred. Firstly, Ramila applied as soon as she first became aware of the judgment against her. From late March until late July, she was first trying to establish what had occurred, then unsuccessfully attempting to find a solicitor and obtain legal aid and then awaiting the July hearing in order for me to direct how her application should be dealt with. The subsequent delays were necessitated by the difficulties in finalising evidence involving complex and grave allegations and obtaining documents from may different sources. Furthermore, funding for all parties is and remains acutely difficult. I therefore find that the fact that the evidence is not complete and the hearings not realistically possible before the hearing of the appeals in December is not the fault of any party save, if Ramila's evidence is correct, of those responsible for pursuing proceedings in her name but without her knowledge or authority.
34. Fresh Evidence. I accept Neil's estate's explanation and reasoning in seeking to have the fresh evidence gathered and adduced by the trial judge in advance of any application to adduce it in the Court of Appeal and in seeking to have Ramila's application, the enforcement application and the family members' jurisdictional challenge to the abuse applications heard and determined in advance of the Court of Appeal hearing. I have, in effect, already ruled that this is desirable in the interests of justice and proportionality and is the procedure to be followed on four separate occasions in May and July and twice in October 2005. This judgment provides the fifth such occasion when this ruling has been given.
35. I add that the scope and gravity and potentially serious nature of Ramila's evidence and the reply evidence is such that I would regard it as unfair and unjust for the Court of Appeal to be unaware of this evidence and for it to be contrary to the overriding objective for the appeal to go ahead without the evidence being gathered. I also find that it is the duty of the trial judge to gather this evidence for the Court of Appeal since it is disproportionate of its time and resources for it to consider gathering it itself.
36. Reasons for the Order. The family members were not prepared to support a joint application to the Court of Appeal to vacate the date of the hearing and refix it for not before 1 February 2006. In those circumstances, I was faced with a very difficult dilemma. On the one hand, I regard it as essential that the applications I must hear and the evidence I am to gather should be completed before the appeal is heard. On the other hand, the family member appellants are entitled to more time to prepare their evidence in reply. Thus, either the applications are heard before the parties are ready or the appeal goes ahead without the additional evidence and consequent findings being available. The least undesirable of these unsatisfactory alternatives is the former.
37. Thus, I am prepared to make available two days in the week of the 14 November 2005 for the hearing of the applications. This will involve my standing out a longstanding fixture for a week at considerable inconvenience to those parties. However, as I see it, I have a duty to the Court of Appeal and to the parties to resolve the outstanding applications before the appeals are heard.
38. I give permission to appeal my order. If the appeal is pursued and the Court of Appeal considers that the evidence should be gathered by me before the appeal is heard but that more time should be allowed for preparation of that evidence, I would be able to hear the applications in the last week of term or in the first or second weeks of the January 2006 term and to give judgment in time for a refixed hearing of the appeals not before the first week in February 2006.
39. Since I have made an order on the adjournment applications and have also given permission to appeal, I draw attention to the parties and to the Court of Appeal that any consideration of this order must be by way of an appeal to the full court rather than by way of an application for procedural directions from the single Lord Justice.

Conclusion

40. I am allowing the appeal to a limited extent. The reality is that the family member appellants have lost their application. I have varied the hearing dates so that the applications are to be heard in the second week in November 2005 and I have dismissed the applications for them to be adjourned until after the hearing of the appeals and to be adjourned to a date in January 2006. I am able, if so directed by the Court of Appeal, to hear these applications either just before or just after the Christmas vacation.

HH Judge Thornton QC

Technology and Construction Court

31 October 2005