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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nelson v Greening & Sykes (Builders) Ltd  EWCA Civ 1358 (18 December 2007)
Cite as:  EWCA Civ 1358
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
HIS HONOUR JUDGE LANGAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE LAWRENCE COLLINS
| DAVID NELSON
|GREENING & SYKES (BUILDERS) LIMITED
Mr Geraint Jones QC (instructed through the General Council of the Bar Public Access Scheme) for Ms Shirene Hanley
Ms Sarah Richardson (instructed by Messrs Chadwick Lawrence) for Greening & Sykes (Builders) Limited
Hearing date : November 22, 2007
Crown Copyright ©
Lord Justice Lawrence Collins :
II The background
"if so this money will be held to your clients order pending formal completion. This leaves a shortfall of £1,000 which is to be held by ourselves pursuant to special condition 18 of the contract...".
III The litigation
A The first action
B The second action and judgment of Mr Robert Englehart QC
"It must be said at the outset that the legal expense to which this dispute has given rise is out of all proportion to the subject matter of the dispute and indeed the total value of this property. ... One cannot help but feel that with a modicum of good sense the dispute could and should have long since been resolved by agreement."
C G&S's application to set aside the order of Mr Robert Englehart QC
"I find the stance taken by Ms Hanley and Mr Nelson quite baffling, both in relation to their conduct and in relation to their submissions of law. I remain wholly perplexed as to why it is that since the order of Mr Englehart QC, made over two and half years ago, Mr Nelson has persistently refused to comply with the order for specific performance bearing in mind that it is Mr Nelson's own case before me that the Property, for which Ms Hanley, through Mr Nelson, has paid under £40,000, is now worth in excess £90,000 on a forced sale basis. None of the evidence before me explains this extraordinary conduct.
It is perfectly clear that Ms Hanley who, for reasons which have never been explained in evidence, used Mr Nelson as a conduit for the payment of the purchase price and the acquisition of the property, has at all times been aware of, and been behind, the persistent failure of Mr Nelson to execute the transfer in the appropriate form."
IV Enforcement of costs orders: order of Peter Smith J dated June 13, 2003
V Judgments of HH Judge Langan QC
A Order of June 9, 2006
B Judgment of November 3, 2006 : Non-Party Costs Order
"Greening entered into a straightforward contract for the sale of a piece of land which is of no great value. Greening was at all times willing to perform its obligations under the contract. Greening was nonetheless harassed (I do not think that I exaggerate by using the word) by litigation commenced on behalf of the purchaser. That litigation has been, through no fault of Greening, little more than an exercise in futility and has now been going on for approaching nine years. That Greening should be out-of-pocket through any inability of the nominal claimant in the second action to pay Greening's costs when a non-party costs order could be made against the real purchaser would, in my judgment, be a grave injustice."
C Judgment of November 28, 2006: Non-Party Costs Order: indemnity
A The charging order
"2.-(1) ... a charge may be imposed by a charging order only on:
(a) any interest held by the debtor beneficially:-
(i) in any asset of a kind mentioned in subsection (2) below, or
(ii) under any trust; or
(b) any interest held by a person as trustee of a trust ("the trust"), if the interest is in such an asset or is an interest under another trust and:-
(i) the judgment or order in respect of which a charge is to be imposed was made against that person as trustee of the trust, or
(ii) the whole beneficial interest under the trust is held by the debtor unencumbered and for his own benefit…
(2) The assets referred to in subsection (1) above are:-
"… this money will be held to your clients order pending formal completion."
B The non-party costs orders
"Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (3) of section 51, Supreme Court Act 1981 to make a non-party pay the costs of the proceedings. ...[I]t will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order some non-party to pay the costs. Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic."
Lord Justice Wall :
I return to the words of [the 1979 Act]. By section 2(1)(b)(i) a charging order may be imposed on any interest held by a person as trustee of a trust if the interest is in (amongst other assets) land, or if the interest is an interest under another trust, the judgement or order in respect of which a charge is to be imposed was made against that person as trustee of the trust. As at 13 June 2003, the legal estate in Plot 9 was still held by Greening & Sykes, the purchase monies had been fully paid and Greening & Sykes accordingly held the legal estate on trust for Mr. Nelson beneficially. Mr. Nelson, by reason of the provision of the purchase price by Ms Hanley, was, as I found yesterday, trustee of the beneficial interest for her.
The beneficial interest was held by Mr. Nelson as trustee for Ms Hanley and was itself an interest under the trust to which Greening & Sykes were subject. Further, Mr. Nelson, having litigated throughout on the basis that he was no more than a nominee for Ms Hanley, and having been supported in that stance by her, the orders for costs are rightly to be regarded as having been made against him as a trustee, even though they do not expressly say so.
….. In a case like the present, where the litigation has come before many judges and it is only at the end of the litigation that one is able to look back over the years and see the picture as a whole, there is much to be said for a composite application to a single judge. Indeed, from the point of view of Ms Hanley, such a composite application is advantageous because it is bound to result in a saving in costs.
Lord Justice Ward: