Gangar, R (on the application of) v Serious Fraud Office

MR JUSTICE HOLMAN: This is a somewhat complex matter in which Barclays Bank have applied to vary a restraint order. In the event, there has been consensus by, or on behalf of, all affected parties and bodies as to the substantive variation sought by Barclays Bank. I do not think it is necessary for me to make any further reference to that.

Some of the properties to which the order relates are owned in whole or in part by a gentleman called David Affleck. Plainly he is someone with a proper interest in this matter and someone who was fully entitled to be heard on the application made by Barclays Bank. He was indeed given ample notice by the bank of their application and of the hearing date. The original hearing date was 4th March 2008 and he had been served on 17th January 2008.

It appears that Mr Affleck instructed a firm of solicitors called Chadwick Lawrence in Huddersfield in relation to a number of his business affairs. Those instructions extended also to this matter. Mr Affleck says that there was a failure by Chadwick Lawrence to deal promptly, or indeed really at all, with this matter. That complaint receives considerable force from the contents of a letter dated 19th March 2008 from Elizabeth Elbro, a caseworker in the customer contact centre of the Legal Complaints Service. At the beginning of that letter Elizabeth Elbro describes that the complaints handling partner at Chadwick Lawrence has "explained that he has reviewed the file and believes that the service offered by Chadwick Lawrence LLP has been unreasonable. He has therefore made an offer of compensation..."

Apparently because of the lack of service provided by Chadwick Lawrence, Mr Affleck himself sent an email to Lovells, the solicitors for Barclays Bank, at 14.12 on 3rd March 2008, ie the afternoon before the date fixed for the hearing. In that email he described how he had instructed Chadwick Lawrence and how they had failed to take any action on his part, and accordingly requested that the hearing the following day be adjourned.

Lovells, and/or their clients, Barclays Bank, were not willing to agree to an adjournment. In this regard it is important to stress that there were in fact two concurrent applications, one arising out of the affairs of a man, Alan White, and the other arising out of the affairs of a man, Shinder Singh Gangar. Both matters were before the court on 4th March and indeed the order that Barclays Bank sought was duly made in relation to the White matter. In other words, Barclays Bank had very good reason for persisting in coming to court on 4th March, notwithstanding the very late request by Mr Affleck for an adjournment.

So it came about that Mr Affleck appeared in person on 4th March. The judge, Black J, did agree to grant an adjournment. Her order provided that Mr Affleck must file and serve a witness statement and skeleton argument in response to the application by Barclays Bank within 14 days, and it reserved the costs of that hearing. Since then, Mr Affleck has instructed and obtained advice from a different firm of solicitors, Curry Popeck. As a result of advice given by them and negotiation, the end result has been that Mr Affleck has not now actively opposed the application of Barclays Bank. Further, he has not filed a witness statement or any skeleton argument. In other words, the end result has been that the very same order has been made today at the restored hearing of the application by Barclays Bank as would have been made by Black J on 4th March but for that very last minute application by Mr Affleck for an adjournment.

In those circumstances, Barclays Bank have asked, and made plain in good time to Curry Popeck, that Mr Affleck be ordered to pay their costs thrown away. In my view, they have correctly and logically identified the costs thrown away as being, not the costs of the hearing of 4th March itself, but, rather, the costs of this hearing today.

So far as quantification of those costs is concerned, they have prepared a detailed statement of costs which was served timeously upon Curry Popeck. The bottom line of that statement indicated costs inclusive of VAT of £7,319.08. However, Ms Phelps, on behalf of Barclays Bank, has rightly said this morning that as the bank is VAT registered they can reclaim the VAT element of that statement of costs, and so she has limited her application today to the gross figure exclusive of VAT. That figure is £6,229.

In order to minimise costs, Curry Popeck have very wisely and appropriately, if I may respectfully say so, not attended today. Rather, they have lodged with the court a small bundle which I have read in full. That bundle begins with a document headed "Note on behalf of Mr David Affleck" in which they effectively set out their case and submissions. The bundle then contains relevant correspondence and emails passing between Mr Affleck and Chadwick Lawrence, and also the recent correspondence between Curry Popeck and Lovells and the letter to which I have referred from Elizabeth Elbro to Mr Affleck. In addition to that bundle, Curry Popeck have written a further letter to the court, dated 10th April 2008, with which they enclosed a letter from them to Lovells, also dated 10th April 2008. I have read those letters and given careful consideration to all these documents.

Essentially, Curry Popeck argue that it was unreasonable of Barclays Bank not to agree to the adjournment requested by Mr Affleck. I cannot accept that argument. It was a very late application indeed for an adjournment, made only on the afternoon before the hearing, which had been fixed for several weeks. In any event, as I have said, Barclays Bank had good reason to continue with their application in relation to the White matter. The essence of Mr Affleck's application for an adjournment was that he had been let down by his solicitors. In a matter of this kind, that is essentially a matter between him and his solicitors and does not, to my mind, afford any particular reason why Barclays Bank should themselves have agreed to an adjournment. The fact that Black J was persuaded by Mr Affleck on 4th March to grant an adjournment does not of itself indicate that there was any unreasonableness on the part of Barclays Bank. Further, it is now clear with hindsight, as I have said, that exactly the same order has finally been agreed and made today as would have been made on 4th March itself. In other words, the whole adjournment has turned out to have served no useful purpose except to enable Mr Affleck to obtain and consider legal advice.

An alternative argument advanced by Curry Popeck in the various documents to which I have referred is that I should make some order for the costs thrown away directly against Chadwick Lawrence. I am not willing to take that course for a number of reasons. First, as it seems to me, Chadwick Lawrence would have to be given formal notice or at any rate an opportunity to show cause against the making of any order. Second, I have read the long series of emails during January and February from Mr Affleck to the actual solicitor concerned, Kate Roberts. I find it very difficult to discern from those emails the exact nature of the professional relationship between Mr Affleck and either Kate Roberts or Chadwick Lawrence; and it may be that there were some wider issues between him and the firm in relation to fees or other matters.

Chadwick Lawrence have indeed, apparently, already agreed to pay compensation to Mr Affleck. I do not know the amount of that since Curry Popeck have rather carefully obliterated all figures from the letter of Elizabeth Elbro. I do not know whether the level of compensation offered is greater or less than the amount of costs in point, namely £6,229. It may be that if, as I propose to do, I make an order for costs against Mr Affleck, he will be able to argue that an element of his compensation should be all or some part of those costs. But at all events it seems to me that those are all matters as between Mr Affleck and Chadwick Lawrence and not any reason why Barclays Bank, who are entirely innocent, should not get their costs thrown away.

For those reasons, notwithstanding the representations of Curry Popeck, for which I am grateful, I propose to order that Mr Affleck shall pay the costs of Barclays Bank specifically of the hearing today. I am satisfied as to the reasonableness of the figures in the statement of costs to which I have referred. I accordingly assess those costs summarily in the sum of £6,229. I make no order in relation to the costs that were reserved by Black J on 4th March 2008. However, the principal order will itself make plain that orders or absence of orders as to costs do not in any way prejudice any contractual right that Barclays Bank may have to recover their costs under their contractual charges and other contractual arrangements.

Is there anything else with which I need deal?

MS PHELPS: My Lord, no. I am very grateful.

MR JUSTICE HOLMAN: Well, I promised you would be away by 1.00 and we have very precisely achieved that, that clock being a minute fast. Thank you very much indeed.