Barnstaple Boat Company Ltd v Jones

On 15 January 2007 Sir Henry Brooke granted permission to bring this second appeal. District Judge Freeman had given summary judgment in favour of the defendant (CJ) on the basis that he had a complete defence to each of three claims in deceit under the Limitation Act 1980. His Honour Judge Hughes QC allowed the appeal in relation to one of those claims but dismissed it as to two. The claimant (BB) sought permission to bring a second appeal and Sir Henry granted permission in the following terms:-

“In the ordinary way I would have considered a second appeal disproportionate, but as the defendant is a convicted fraudster who admits that he obtained the sum in question by fraud, I have not allowed matters of proportionality to affect my mind.

The issue here is whether the claimants could, with reasonable diligence, have ascertained before 31^st March 1999 that Mr Jones obtained this money by dishonestly representing that he wished to purchase a particular boat, alternatively whether it is sufficient simply for the claimants to have believed that they were defrauded of this money without any knowledge how the fraud was perpetrated.

Given that the judge preferred the latter approach, it seems to me that this does raise a point of principle or practice fit for a second appeal.”

An application was made immediately on behalf of CJ to set aside that permission on the basis that Sir Henry had misunderstood the position. CJ did not admit any of the frauds alleged and albeit he had been convicted of fraudulent trading on two occasions those convictions did not in anyway relate to the allegations made in this action.

That application should have come on promptly so that the question of whether permission should have been granted could have been considered before costs were incurred preparing for the appeal. Unfortunately that did not happen through an error in the Court of Appeal office and ultimately the appeal having been listed, the delay was such that it was obviously sensible that all matters should come on at the same time.

When the matter came on before us Mr Weddell for CJ very sensibly appreciated that the merits of the appeal would in any event form part of any consideration as to whether permission would be granted on any reconsideration and suggested that the sensible course was to hear the appeal de bene esse. That we did and reserved our judgments.

It is right to consider first the permission aspect. Sir Henry did in fact misunderstand the position in so far as he thought that CJ admitted the very frauds the subject of the claim.CJ was thus entitled to have reconsidered the question whether permission to bring a second appeal should be granted. It seems to me that two points dictate that permission should be granted and indeed demonstrate that if the true facts had been appreciated Sir Henry would still have granted permission. First Sir Henry’s misapprehension only relates to his possible consideration of proportionality. He thought and I agree with him that the case itself raised a point of principle. The judge thought it was sufficient for BB to know that it had been “defrauded” without consideration of whether it knew the elements of the fraud it was alleging in its pleading i.e. the deceit it was alleging. That raises a point of principle on the proper construction of section 32(1) (a) of the Limitation Act 1980. Second Sir Henry’s error is to suggest that CJ “admits he obtained the sum in question by fraud”. CJ does not admit that. However CJ was a convicted fraudster having been convicted twice of fraudulent trading. He had also been found to be fraudulent in an action brought by BB. He in addition settled another action brought by BB on terms favourable to BB and from which it was possible to infer some admission of impropriety.

It is difficult to think that having identified a point of principle permission to appeal would have been refused on the grounds of lack of proportionality on a true appreciation of CJ’s position, and I would therefore not set aside the permission to appeal and can now turn to the appeal itself.

BB brought three actions between February 2000 and July 2004 against CJ (joining others but that matters not). In those actions BB alleged dishonest conduct on the part of CJ in the course of a business relationship between BB and CJ’s company Bowhelm Limited (Bowhelm). That relationship terminated acrimoniously in 1998 and Bowhelm immediately went into liquidation. In the first action relating to a Searay, BB alleged that CJ had in May 1998 fabricated an invoice in pretending to sell the boat when he had not. BB obtained judgment on 27^th September 2001. In the second action commenced on 10^th January 2002, it was alleged that a Maxum 1700 speed-boat had in May 1998 been found to be “missing” and that CJ dishonestly invented that there had been a sale. This action was tried on 12 August 2002 and was dismissed. The third was commenced on 3^rd July 2004. In this action it was alleged that CJ in or about March 1998 dishonestly pretended that a 21-foot motor cruiser had been stolen from his yard suggesting BB should claim on their insurance; it was alleged that the true position was that the boat had in fact been sold without informing BB and without paying money to BB. This action was settled for a substantial payment by CJ.

On 31 March 2005 BB commenced this fourth action claiming damages for “deceit, fraud and fraudulent misrepresentation on dates between December 1996 and August 1998 in relation to the acquisition of a Maxum 32 motor cruiser, six motor cycles and Fletcher Arrow Bolt.” Particulars of claim were ultimately served in January 2006 in which the allegations of fraud were spelt out in the following terms.

Claim One

“6.

The Claimant made the said payment relyong upon representations made by the Defendant on behalf of BL that:-

6.1

There was a Maxum 32 motor cruiser for sale.

6.2

It was a fire damaged boat which was on its way to the Southampton Boat Show that year and that it was shown in a series of photographs which were then shown by the Defendant to the Claimant.

6.3

The payment of £13,500 would secure the purchase of the said boat.

7.

The said transaction was evidenced by BL’s invoice number 20323.

8.

The said representations were false in that BL did not purchase on the Claimant’s behalf the Maxum 32 and the purported transaction was a fiction.

9.

The said false representations were made by the Defendant fraudulently in that he knew them to be false, he had no intention of purchasing the Maxum 32 on behalf of the Claimant and he knew the alleged purchase to be a fiction.”

Claim Two

“11.

On 11^th December 1997 the Defendant told the Claimant that BL sold for the Maxum 32 on the Claimant’s behalf for the price of £16,200 and offered to purchase on the Claimant’s behalf for the price of £17,000 6 motorcycles, the details of which are given in the Part 1 of the Schedule.

12.

The Claimant agreed to purchase the said motorcycles relying upon the representation by the Defendant that £16,200 was available from the sale of the Maxum 32, leaving a balance to pay of £800. The balance was set off by the Claimant against other monies owed by BL to the Claimant.

13.

The purchase of the motorcycles was evidenced by BL’s invoice number 20379.

14.

The said representations made by the Defendant were false because the sale of the Maxum 32 was a fiction and there were no monies available from the sale to pay for the said motorcycles, and they were fraudulent because they were made by the Defendant knowing them to be false.”

Claim Three

“17.

On or about 4^th January 1997 BL purchased on the claimant’s behalf a Fletcher Arrowbolt 21 boat for £5,500. The purchase was evidenced by BL’s invoice number 23535.

18.

The Claimant purchased the said boat relying upon the representation made (orally) by the Defendant that it was in good working order.

. . . .

20.

The said representation was false because the engine was not functional having been flooded by being submerged) before the purchase of it by BL on the Claimant’s behalf.

21.

The said representation was made by the Defendant fraudulently because he knew it not to be true and further because he deliberately decided not to bring to the Claimant’s attention the fact that the engine on the boat had been damaged by flooding. As to knowledge the Claimant will rely on the matters pleaded in paragraph 26.3 below.

. . . .

26.3

The circumstances in which the Claimant discovered the fraud and the deliberate concealment were that Mr Tidmarsh of the Claimant met an engineer named Douglas Day who informed Mr Tidmarsh that he had inspected the boat on or around 15^th June 1999 but concluded that the engine was beyond economic repair. Mr Tidmarsh was told by Mr Day that he (Day) had been informed by the Defendant that the boat had been sunk.”

There were thus three claims first to a sum of £13,500 paid out on or about 4^th November 1997; second to a sum of £800 set off in or about December 1997; and third to a sum of £5,500 paid out on or about 4^th January 1997. BB in its pleading faced up to the fact that a limitation defence might be available to CJ and asserted that each of the three claims was based on the fraud of CJ and asserted (a) as regards claims one and two that the fraud, i.e. the fact that CJ had fraudulently represented that he intended to buy the Maxum 32 when he had no intention of doing so, only became known to Mr Tidmarsh (Managing Director of BB), when he inspected the documents held by the liquidator of Bowhelm in February 2005; and (b) as regards claim three that the fraud, i.e. CJ’s fraudulent representation that the Fletcher Arrowbolt 21 was in good working order when CJ knew that the engine had been submerged and was not functioning, only became known to Mr Tidmarsh when he met an engineer in September 1999 who informed him (i) that he had inspected the boat and found it beyond economic repair in June 1999, and (ii) that he had been told by CJ that the boat had been sunk.

Reliance was being placed on section 32(1) of the Limitation Act 1980 which so far as material provides as follows:-

“where in the case of any action for which a period of limitation is prescribed by this Act . . . (a) the action is based upon the fraud of the defendant; . . . the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

An application was made by CJ to strike out the fourth action. The application was made on two bases first that it was an abuse of process for BB to commence this fourth action. All actions (it was said) allege loss of BB’s stock through CJ’s dishonest activities and there is no reason why they should not all have been brought in one single action. Alternatively reliance was placed on all three claims being statute barred.

So far as claims one and two were concerned, CJ asserted that Mr Tidmarsh knew of those claims in May 1998 when he complained to the police about CJ’s activities formalised in a statement given to the police in November 1998. It is accepted on CJ’s behalf that that statement does not deal in terms with the Maxum 32 or allege any fraudulent representation in relation to it. It summarises Mr Tidmarsh’s allegations in a paragraph at the end in the following terms:-

“With legal costs added to the above outstanding invoices, my company is owed a figure in excess of £70,000 be Bowhelm Ltd. I can say that I believe that it has been deceived by Carl and Geoffrey JONES and that our stock has been sold by them, without our authorisation or payment for same, thus depriving us of our capital.”

As regards the Fletcher Arrowbolt, CJ asserts that the boat was removed by BB from Bowhelm’s yard on Bowhelm’s collapse in July 1998 and taken to BB’s yard in order to sell it. CJ does not accept that it would take 14 months until September 1999 to discover the condition of the boat. He asserts that the engine would obviously have been turned over and/or that with reasonable diligence the condition would have been discovered shortly after repossessing the boat in July 1998.

Mr Tidmarsh put in a statement dealing with his state of knowledge. He accepted in that statement that in July 1998 he suspected serious wrongdoing so far as stock which had been placed with Bowhelm was concerned and it was in those circumstances that he contacted the police and gave his statement. He asserts that the police investigation took place and that the police at that stage seized all the documents, and that they would not let him see them despite his requests. CJ was charged and convicted of fraudulent trading for which he was sentenced to a term of imprisonment in September 2000, and Mr Tidmarsh hoped he would be able to see the documents at that stage, but he says they were passed to the liquidator of Bowhelm who was initially unwilling to provide him with access to the books and papers. During the third action in 2004 BB made an application for third party discovery against the liquidator, Mr Tidmarsh acting in person for BB. It was it seems a very wide-ranging application. On the application Mr Weddell acting for CJ appeared and argued successfully that the application should be refused, Mr Weddell drawing the court’s attention to Re Howglen Limited [2001] 1 All E R 376 and the limits on the court’s powers to grant discovery against third parties.That action was then settled in February 2005 in BB’s favour despite the lack of documents. Mr Tidmarsh says that he then still suspected that there were items of stock that had been dishonestly appropriated, and spoke again to the liquidator who was on this occasion more co-operative. Indeed he allowed inspection of the documents in return for a fee which took place on 10^th March 2005. On that inspection Mr Tidmarsh says he found no documentation at all to support a purchase of the Maxum 32, nor any documentation to support a subsequent sale and according to Mr Tidmarsh “it became clear in my mind that both sale and the subsequent purchase were fictitious.”

These proceedings were then commenced and the allegation made that the purchase and sale were fictitious and that CJ when obtaining the money from BB did so representing there would be a purchase of the boat when he had no intention of purchasing the same. That is the first claim and is a claim in deceit, to be distinguished from those claims made in previous proceedings which appear either to be claims in conversion (albeit dishonest acts amounting to conversion), or possibly claims against CJ personally for inducing breaches of contract by Bowhelm.

As regards the Fletcher Arrowbolt Mr Tidmarsh spells out the history in some detail. In summary his evidence is that he took the boat back when Bowhelm collapsed in July 1998 delivering it to Swan Marine where it was stored. Swan Marine during 1999 found someone interested in buying it but was having difficulty in getting the engine to “do anything”. An engineer inspected and reported the sad state of the engine. When the engineer was visiting a neighbour of Mr Tidmarsh, Mr Tidmarsh engaged him in conversation and was told by the engineer that he had inspected the boat before when it was at Bowhelm and formed the view it was beyond economic repair as the boat had been sunk. The engineer then told Mr Tidmarsh that CJ was well aware that the boat had been sunk and was beyond repair before he sold it to BB.

In this action this was the subject of the third claim which was again a claim in deceit again to be contrasted with the claims made in the previous actions to which I have referred.

He considered the first two claims relating to the Maxum 32 and held first in reliance on the paragraph at the end of Mr Tidmarsh’s statement to the police that BB was owed £70,000 and that stock had been sold without authorisation and that BB “knew of the fraud” [paragraph 7]. Thus he held BB “knew there was a fraud and what I have to decide is whether they could have found out about it, or found sufficient detail to commence proceedings within the limitation period”. His conclusion was “If I look at the question of whether or not [BB] could have discovered the fraud with reasonable diligence, the answer must be yes they could. They could have found out about it long ago.”

In relation to the Fletcher Arrowbolt he was of the view first that there was no reason why it should not have been the subject of one of the earlier actions and second that in any event that he was “convinced they could have found out about this damage sooner as well.”

The district judge recorded that if he had been of a different view, he would not have found that the action was an abuse of process.

Permission was granted to appeal the district judge’s decision and the matter came before His Honour Judge Hughes. In his judgment he traced through the history of the collapse of Bowhelm and the three previous actions. On the limitation points he referred to section 32 and the well known passage in Paragon Finance PLC v D.B. Thackerar [1999] 1 All ER 400 at 418which for convenience I can quote at this stage:-

“. . . the question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ observed that reasonable diligence must be measured against some standard, but that the six year limitation period did not provide the relevant standard. He suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency. I respectfully agree.”

He also referred to Johnson v The Chief Constable of Surrey Transcript 19^th October 1992and the passage in the judgment of Rose LJ which again it is convenient to quote:-

“. . . for my part, I accept Mr Glasgow’s submission that, in considering the section, there was no middle ground between facts and evidence. It may be that the plaintiff’s case following the quashing of the convictions would be evidentially stronger and have a better prospect of success. But I am unable to accept Mr Hytner’s submission that the quashing of the convictions adds anything to the plaintiff’s knowledge of facts relevant to his right of action. Facts which improve prospects of success are not, as it seems to me, facts relevant to his right of action.”

He then referred to Mr Tidmarsh’s efforts to obtain the documents. He referred to the fact that there was “no doubt Mr Tidmarsh was aware by May 1998 that [BB’s] stock in Bowhelm was being depleted and that its money was being misapplied by reason of [CJ’s] fraud” and he refers as did the DJ to the last paragraph of Mr Tidmarsh’s statement to the police.

He records the submissions being made on behalf of BB i.e. (i) that it was only the discovery that the purchase and sale of the boat was a complete fiction which gave BB through Mr Tidmarsh the knowledge of the fraud on claims one and two and (ii) the submission that this fraud was in fact of a different character to those brought previously.

Then having referred to Mr Weddell’s argument that BB was confusing knowledge with evidence to prove fraud he said this at paragraph 30:-

“Although Mr Cairnes [then representing BB] argued his case persuasively, I am satisfied that there is a fallacy underlying his point. In 1998 Mr Tidmarsh knew that the claimant had advanced £13,500 to purchase a boat; he knew that subsequently and in addition the claimant had advanced a further £800 to purchase motorcycles and he knew that when Bowhelm collapsed he had been unable to recover the financial investment (£13,500 plus £800) nor the motorcycles apparently representing that investment. Mr Tidmarsh had sufficient information to enable him to plead his case against the defendant. ”

Thus he upheld the District judge decision in relation to the first two claims.

As regards the third claim he reached a different conclusion. He put the matter this way in paragraphs 38 to 40:-

“38.

I am satisfied that taking the particulars of claim as a whole this element of the claim has been properly pleaded as one where the defendant knew that the boat had been sunk and the engine damaged beyond economic repair when he represented to Mr Tidmarsh that it was in good working order.

39.

I am satisfied that prior to the conversation with Mr Day, the engineer, in August 1999 Mr Tidmarsh had no idea of the fraud in this case. This is not another instance of stock or monies being misapplied and lies told to cover the defalcations. This was a fraudulent representation as to the condition of a boat. Mr Tidmarsh had no idea that there had been a fraud until, by chance, Mr Day spoke to him.

40.

I do not accept the argument that the claimant had ample opportunity to discover the fraud simply by having the boat displayed for sale and that reasonable diligence would have revealed what had happened. I see no reason to doubt the evidence of Mr Tidmarsh that it was not until 1999, when someone was interested in buying the boat, that an unsuccessful attempt was made to get the engine started. It was that failed attempt that led to the instruction of the engineer and to the discovery of the fraud.”

The judge was therefore as regards abuse only concerned with the third claim and he concluded that despite the fact that there was no reason why the action should not have been brought much earlier, BB’s conduct could not be described as abusive or as harassment of CJ.

BB appeal the decision that the first claim is barred by limitation. They do not appeal the second claim (we were told because of its size). CJ appeals the judge's conclusion on the third claim and his conclusion on abuse submitting that all claims should be struck out on that basis even if the first claim might otherwise not be statute barred it was an abuse of process not to bring it with the other actions.

There is no issue as to the proper approach to section 32 so far as the citations quoted from the judge’s judgment are concerned. But there is one point which needs emphasis which Mr Norman would submit undermines both conclusions of the district judge and the judge on claim one, and indeed the submissions of Mr Weddell.

In Beaman v A.R.T.S. Limited [1949] KB 550 the Court of Appeal in relation to the wording then in section 26 of the Limitation Act 1939, and considering whether an action alleging a “dishonest” conversion was an “action based on fraud” held that it was not because in an action for conversion it was not essential to plead fraud. The section applied to only to actions in deceit or actions where the pleading would be defective without an allegation of fraud.

Mr Norman’s submission on the first claim he put very simply. The claim is a claim in deceit where it is essential to plead fraud. That not only distinguished the case from any of the previous actions but was a claim that could not be pleaded until Mr Tidmarsh knew that the representation had been made without belief in its truth. The deceit alleged is a fraudulent representation that CJ intended to buy a boat the Maxum 32 when he in fact had no such intention. Prior to seeing the papers in the hands of the liquidator Mr Tidmarsh had no knowledge that there was no purchase of a boat, and nothing on which to base an allegation that the representation that CJ intended to buy a boat in order to obtain £13,500 the price thereof was untrue. Thus submits Mr Norman knowledge of the fraud that took place was only gained in February 2005.

Mr Weddell’s response to this aspect of Mr Norman’s submissions is to submit that Mr Tidmarsh knew he was being cheated in July 1998 and indeed knew that amongst the money he had lost was £13,500 paid over for this boat. It was as Mr Weddell powerfully put it “blindingly obvious” in 1998 that CJ had dishonestly obtained money including the £13,500. But that submission fails to distinguish between dishonest acts of conversion or dishonestly interfering with such contract as there was between Bowhelm and BB, where fraud is not a necessary allegation in pleading the case, and, the tort of deceit, where it is.

There is a powerful case to be made for Mr Tidmarsh suspecting that CJ had behaved dishonestly and that the dishonesty had led to the loss of this £13,500 but the subsection contemplates the limitation period running when the claimant obtains knowledge of the fraud i.e. knowledge that the deceit which he alleges had been perpetrated. The critical allegations on which claim one is based are (i) that a representation was made (that it was CJ’s intention to buy a boat with BB’s money) which (ii) was untrue (iii) to the knowledge of the representor (because he never intended to buy that boat).

Mr Tidmarsh did not know assuming his evidence is accepted what dishonesty had taken place and in particular did not know that a boat had not been purchased and that CJ never intended to purchase one until he saw Bowhelm’s papers in February 2005.

I am clear that so far as knowledge is concerned it is strongly arguable (and that is all that is necessary at the strike out stage) that Mr Tidmarsh did not know that the original representation was fraudulent until February 2005.

But that still leaves the question whether with reasonable diligence he could have found out sooner. The onus is on BB but it seems to me strongly arguable that they will succeed in showing the use of all reasonable diligence. Mr Tidmarsh’s evidence is that he tried to get the documents from the police and was unable to do so even in 2000 once the prosecution was over. He then tried to get them from the liquidator who was unwilling to hand them over. There is little evidence of attempts being made between 2000 and 2004, but as Mr Norman points out even if the finding was that knowledge should have been gained in 2000, that would still mean the proceedings were brought within the limitation period. In fact once Mr Tidmarsh attempted by court proceedings to obtain the documents he was faced with opposition from CJ himself preventing him seeing them in 2004. One must take it that the liquidator was still not willing voluntarily to allow sight of the documents at this stage, and that there was no change of heart by the liquidator until 2005.

Mr Weddell submitted that BB could have started proceedings for an account and thereby ascertained the true position. CJ was not however an accounting party. Even if Bowhelm was, Bowhelm went into liquidation in 1998 and it is understandable that BB would not wish to finance proceedings which could only have had as their aim not the obtaining of documents but the aim of recovering money when there was no realistic prospect of recovery.

I would allow the appeal from the judge’s decision on limitation so far as claim one is concerned. In my view it is arguable that BB did not have knowledge of the deceit until 2005 and that they will succeed in showing that they used reasonable diligence up until February 2005 or in any event up to the year 2000.

As regards the third claim Mr Weddell submits that Mr Tidmarsh must have been aware that this boat was beyond economic repair either in July 1998 when he took possession of it or in any event before the end of March 1999. But this submission which found favour with the district judge is beside the point. Even if Mr Tidmarsh appreciated or should have appreciated the engine was seized, his evidence is that he did not know that CJ had known before he sold the boat that the boat had been submerged and that the engine did not work. Again as with claim one if he did not know that that the representation made to him was untrue to the knowledge of CJ until his chance encounter with the engineer in late 1999, limitation does not begin to run until that time, unless use of reasonable diligence would have enabled him to know earlier. I can see no basis for suggesting that there was any failure to use reasonable diligence or that any use of diligence would have brought about the chance meeting earlier.

The judge was clearly right in his view as to limitation on this third claim, and I would dismiss the appeal of CJ on that aspect.

As to abuse, it is not easy to understand why the third claim should not have been brought much earlier, Mr Tidmarsh learning of the fraud as he alleges in September 1999. But in agreement with the judge I would not hold that there was any abuse in bringing that claim. As Lord Bingham said in Johnson v Gore Wood [2002] 2 AC 1 at 31B, when comparing cause of action estoppel with abuse of process, “the underlying public interest is the same; that there should be finality in litigation and that a party should not be twice vexed in the same matter.” Even in that context he stressed that “It is ….wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

Claim three relates to a different boat from those the subject of the previous actions, and raises a quite different cause of action from those raised in previous proceedings. It is not enough to give a foundation to an abuse argument that the action could have been brought earlier or as part of a previous action. The Judge was clearly right not to accede to the argument that the third claim was an abuse.

As regards the first claim it is fully understandable how that claim came to be brought separately from the others in March 2005. On Mr Tidmarsh’s evidence the fraud was discovered only shortly before. If BB were to lose on the grounds that they did not exercise reasonable diligence that would be one thing, but if they did use reasonable diligence, it is difficult to describe an action as an abuse if it is brought as soon as the claimants know they have a claim.

I would allow the appeal in relation to the first claim and dismiss the cross appeal in relation to the third. I would dismiss the cross appeal in relation to abuse.

An application was made to the district judge, in the alternative to seeking to strike out, for security for costs. In the event he did not have to deal with that application. The judge despite reinstating the third claim on appeal, did not deal with that application saying (as we were informed) that the matter should go back to the district judge. Mr Weddell (somewhat bravely) suggested that despite the view taken by the judge, we should deal with security or make it a term of allowing the appeal that security should be provided.

It would not be right to make the allowing of the appeal conditional on the putting up of security. In any event we do not have the up to date position so far as BB are concerned. I agree with the judge that that application should be referred back to the district judge who can deal with an application on up to date material. One might hope however that before further costs are incurred a sensible compromise of the case can be reached.

I agree

I also agree.