Investec Ltd. v Zulman & Anor

For the reasons given in the judgment which I now hand down, this appeal will be dismissed and the order of the court will be, one, that the appeal is dismissed; secondly, that the respondent solicitors, Messrs Radcliffes Le Brasseur, be released from the undertaking recorded in the order of David Steel J of 15 July 2009 and/or any restrictions on the use of the ₤80,000 paid by the claimant pursuant to paragraph 4 of that order and/or any interest earned thereon; and thirdly, that the appellant do pay the respondents’ costs of the appeal, such costs to be subject to a detailed assessment if not agreed, and to pay ₤18,000 on account of such costs by 4p.m. on, I will say, 2 June 2010.

I will give a judgment in relation to the position on costs so that it can be transcribed in due course. The order is uncontroversial save as to costs. The issue on costs relates to what has been called the pleading point, which we decided against the respondents, in the sense that we did not dismiss the appeal on the basis that the appellant’s arguments were not open to them on the pleadings. Since this was a matter which was hotly contested before the hearing, considerable sums of money were expended, and there is no doubt that the respondents raised the temperature unnecessarily by wrongly suggesting that Mr Downes QC misrepresented the pleading position in the course of seeking permission to appeal from Aikens LJ.

Having won on this issue, the claimant then seeks the costs of this issue, and has asked for an oral hearing on the matter. We are satisfied that there is no need for an oral hearing, which would only add yet further to the expense, and we have had the benefit of extensive written submissions. We have anxiously considered those submissions, which are persuasively presented. But we have in the end decided that the matter is not as clear cut as the appellants would have us believe, and that we should not depart from the usual order that the costs of a successful respondent should be paid by the appellant.

The reason for this is, in this case, that the question whether an agreement was made on 1 February 2007 was not originally a pleaded issue. The pleadings allege that the relevant agreement was made in January 2007. No application to amend was made, or at any rate carried through to a request for a decision. The question had, however, surfaced in the cross-examination of Mr David Zulman, and was covered in final speeches.

We have decided that although an agreement in principle was reached on that date of 1 February 2007, nothing was intended to be binding until reduced to writing, and signed, which it never was. It seems to us, therefore, that there was initial fault on the part of the appellant in failing to make their case clear enough for the respondents and the judge to understand. The merits of the pleading point are thus by no means one-way, even though the appellant ultimately won upon it. We consider that it was so bound up with the main issue, which is whether the parties intended to be bound on 1 February, that no separate order for costs of that issue should be made.

The appellant must therefore pay the respondents’ costs in full, and make a payment on account of those costs in the sum of ₤80,000.