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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 >> Dufoo v Tolaini & Ors  EWCA Civ 1536 (27 November 2014)
Cite as:  EWCA Civ 1536
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR STEPHEN JOURDAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE GLOSTER
| ALUN DUFOO
|- and -
DA PHILLIPS & CO LTD
(In its capacity as trustee of the Premier Trust)
QUIET MOMENTS LIMITED
Mr Gareth Tilley (instructed by Pinsent Masons LLP) appeared for the Second Respondent
Mr Pannell appeared in person
Mr Tolaini was not present or represented
Hearing date: 30th October 2014
Crown Copyright ©
Lord Justice Jackson:
|Part 1. Introduction||Paragraphs 2 to 5|
|Part 2. The facts||Paragraphs 6 to 17|
|Part 3. The present proceedings||Paragraphs 18 to 34|
|Part 4. The appeal to the Court of Appeal||Paragraphs 35 to 37|
|Part 5. The relevant legal principles||Paragraphs 38 to 41|
|Part 6. The first ground of appeal – the loan terms issue||Paragraphs 42 to 47|
|Part 7. The second ground of appeal – contribution||Paragraphs 48 to 71|
|Part 8. Executive summary||Paragraphs 72 to 75|
"Mr Brown" means Mr Christopher Brown.
"Bridleway" means Bridleway Ltd, a company in a group of companies known as the McLaren Group.
"CPR" means the Civil Procedure Rules 1998, as amended.
"DAP" means D.A. Phillips & Co Ltd, a company which is trustee of the Premier Trust. The Premier Trust holds various pension funds. It was second applicant in the proceedings below and is a respondent in this court.
"Mr Mansoori" means Mr Rossano Mansoori-Dara.
"Mr Pannell" means Mr John Pannell, who was third applicant in the proceedings below and is a respondent in this court.
"QML" means Quiet Moments Ltd.
"Mr Tolaini" means Mr Jean-Paul Tolaini, the respondent against whom all the original claims were made. Mr Tolaini is not affected by the issues in the appeal, although nominally he is a respondent to the appeal.
"(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply."
Rule 44.2 (5) elaborates on the meaning of conduct, but I need not set that provision out.
"I have found this a difficult issue, but in the end I have decided that it would not be right to make any such order. My principal reason for that is that Pannell and DAP settled their dispute with Mr Tolaini on terms that there would be no order as to costs. There is a strong public interest in encouraging settlements – encouraging people to give up part of what they are claiming in order to achieve a settlement, and that is exactly what Mr Pannell and DAP did, and to make an order of this kind would be to force them to contribute to Mr Tolaini's costs in relation to the loan terms issue, they having settled it. That weighs more heavily in my judgment in the scales of justice than Mr Dufoo's claim that he joined in with Mr Pannell and DAP in advancing this case for their benefit, and therefore it would be unfair on him to require him to bear the whole of the costs. Ultimately, as it seems to me, if a party choose to continue a case to trial when others have settled their disputes, they do take the risk that they will end up bearing a share of the costs in excess of that which they would have borne if all parties had continued their dispute to trial."
The Chancellor of the High Court:
Lady Justice Gloster: