Weston & Anor v Weston & Ors

Robert Weston established a sign-writing business in about 1896, and a sign-writing business under the name Westons does, I understand, continue to this day. On his death in 1924 his widow took over the running of the business. When she died in 1938 the business was taken over by their three sons, Fred Graham Weston, Robert Handel Weston and Charles Stanley Weston. Fred Graham Weston died on 2 January 1962 and Charles Stanley Weston died in 1963. An action for the winding up of the partnership was begun by Writ issued in 1963. The Plaintiffs were Fred Graham Weston’s widow, Ellen, and their son Glyn, to whom Letters of Administration of his Estate had been granted. The original Defendants were Robert Handel Weston and the widow of Charles Stanley Weston, Gladys.

On 5 February 2004 Master Bowman made an Order in that action, two aspects of which are the subject of this appeal. First, he dismissed an application by Mr Dennis Weston to be joined as a party to the action. Second, he made an Order whose effect was to permit parties to proceed in 2004 to an assessment of costs which had been ordered to be taxed under Orders made in 1984. Mr Dennis Weston appealed against the former order, Mr Glyn Weston against the latter. The appeals came before me. I ruled that Mr Dennis Weston’s appeal should be dismissed. The hearing of Mr Glyn Weston’s appeal then started but had to be adjourned, and resumed when some further documents were available.

Given what I have already said it will be obvious that the history is extraordinary and dismal. This judgment is long because I think it important that the parties know, without risk of shortcuts, how I have tackled the problems that the appeal presented. As one would expect, a piece of common ground is that the action needs to end.

In the action a Receiver and Manager was appointed on 19 March 1974. His final account was passed and certified by Master Chamberlain on 11 February 1982. A payment in to the credit of the action of the order of £53,000 was made. Matters have not been followed through to payment out, with the result that there is now in court a sum standing to the credit of these proceedings which exceeds £400,000 and will be moving towards £450,000. When the sum is finally paid out of Court, there will be some income tax to be paid, and what is left will then be distributed between and through a number of Estates: it will be distributed not to those who were interested in it when the family dispute was taken to Court, but to a later generation. Among those concerned with the matter is Mr Dennis Weston, already mentioned. He is the first-named of the four family members to whom Letters of Administration of Ellen Weston’s Estate were granted on 14 March 1983.

Although parties have opposed views, I do not think any of them would disagree with the final paragraph of a letter of 12 July 2004 which a party wrote to the Court:

“There is a desperate need for the defendants, plaintiffs and solicitors to see the final conclusion to this unhappy and divisive affair, and we rely on the Courts expertise to achieve this long wished for objective.”

It is understandable that the documents betray frustration of people trying to establish the detail of the history of and surrounding this litigation and to find a way out of it; and that people have attacked each other’s behaviour. It is not atypical to find that in his fax to the Court on 5 February 2004 Mr Dennis Weston was describing Mr Glyn Weston’s Skeleton Argument and Application as “outrageous”; for his part, Mr Glyn Weston was to describe Mr Dennis Weston’s behaviour of 5 February 2004 as “inexplicable”.

I record that those litigating in person have worked hard to identify the relevant rules, both the Rules of the Supreme Court and the Civil Procedure Rules, and in making their submissions in writing and orally. Mr Gregory, for the represented parties, and his instructing solicitor, Mr Harrop, have also worked diligently to provide an orderly account of events, and helpful submissions. The papers suggest, incidentally, that Mr Harrop’s firm has yet to be paid for any of the work it has done since the action was started.

The relevant phase of an already long-running family dispute began in 1979, when the Receiver’s report and final accounts were issued. It appears that the Defendants were, and the Plaintiffs were not, prepared to accept the Receiver’s report and final accounts when they were issued. The disputes arising from that were resolved by Orders of Master Chamberlain, and the important Order for present purposes is that dated 8 May 1984.

The court file contains a letter written during this phase by Steven Paris and John Oldham, solicitors, stating that the Plaintiffs had told them in March 1982 that they no longer wished them to act for them. Although he has consulted solicitors at later stages, Mr Glyn Weston has evidently acted in person for much, but by no means all, of the time since then. A solicitor who did act for him for a time applied, successfully, to come off the record in 1990 on the basis of lack of instructions and/or non-payment of an interim account dated 30 April 1985.

The Order of 8 May 1984 included appropriate declarations: in particular, it provided that the balance of moneys remaining after payment of the costs that the Master had ordered be distributed in the proportions 40.3% in respect of the Fred Graham Weston share, 34.46% in respect of Charles Stanley Weston’s share and 25.24% in respect of Robert Handel Weston’s share.

The costs orders were as follows:

Now it was the Defendants who were dissatisfied. Whereas the Master had ordered all parties’ costs to come out of the fund, the Defendants thought that the Plaintiffs should pay the costs from March 1979 to May 1984 because the Plaintiffs had not been willing to accept the Receiver’s report and accounts. So the Defendants appealed. Nourse J. (as he then was) made an Order on 15 November 1984. This Order discharged the first part of the costs order of Master Chamberlain, i.e. that dealing with the costs of all parties down to 23^rd March 1984 except where otherwise specifically ordered, and ordered instead,

“(2)

that pursuant to Order 62 rule 7(3) of the Rules of the Supreme Court the question of the costs incurred since the end of March 1979 (including the costs of this appeal) be referred to the Taxing Master;

“(3)

that the costs of all parties down to the end of March 1979 except where otherwise specifically ordered be agreed or taxed on a trustee basis and paid as directed in the payment schedule hereto.”

The reference to the payment schedule was clearly to the payment schedule to Master Chamberlain’s Order.

R.S.C. Order 62 rule 7(3) permitted the Court to direct the taxing officer to inquire into any thing done or omission made, and, if it appeared to the taxing officer that a direction under Order 62 rule 7(1) should have been given in relation to it, to act as if the appropriate direction had been given. Order 62 rule 7(1) provided:

“Where in any cause or matter any thing is done or omission is made improperly or unnecessarily by or on behalf of a party, the Court may direct that any costs to that party in respect of it shall not be allowed to him and that any costs occasioned by it to other parties shall be paid by him to them.”

There might be room for argument as to the precise effect of the Order of Nourse J., but it is not necessary to explore it. The parties’ working assumption may have been that on the inquiry the Taxing Master should consider whether the Plaintiffs’ behaviour should result in any order other than that all parties’ costs from the end of March 1979 to 24^th March 1984 should be paid on a Trustee basis out of the fund; to the extent that he decided that it should so result he would so order, and otherwise all costs for that period would come out of the fund. He was also given discretion as to the costs of the appeal.

The time for beginning proceedings for the taxation of costs was 3 months from the date of the judgment, direction or order for costs (Order 62 rule 29(1)). The time could be extended, and if the party entitled to costs failed to begin taxation proceedings within the time limit any other party to the proceedings could, with the leave of the taxing officer, begin taxation proceedings (Order 62, rules 21 and 29(3)). Under Order 62 rule 28(4), where a party entitled to costs (a) failed without good reason to commence or conduct proceedings for the taxation of those costs in accordance with the order or any direction or (b) delayed lodging a bill of costs for taxation, the taxing office might allow the party less than the amount that would otherwise have been allowed on taxation or might wholly disallow the costs. My attention was drawn to a number of cases under the provisions of the Rules of the Supreme Court, but I do not think it necessary to do more than say that by delaying to commence taxations the parties put themselves at risk of having costs disallowed.

No party issued a summons or otherwise attempted to proceed with the reference to the taxing master. No party began proceedings to tax the pre-March 1979 costs on either side.

The case next came for a hearing before the Court on 4 October 1991, i.e nearly 7 years after the Order of Nourse J.

A Summons issued on 3 June 1991 by Bishops, solicitors who were acting on behalf of the First, Third and Fourth Defendants, sought, principally, orders that:

The application was supported by an Affidavit sworn on 10 May 1991 by Mr Wilfred Wild, Legal Executive, who described the application as being for an order “enabling a final taxation of all parties’ cost to take place and, thereafter, this action to be concluded.” He explained the delay that had occurred, which was partly caused by dissent following the death on 3 January 1985 of Gladys Weston, the Second Defendant, which dissent delayed the obtaining of Probate to her Estate until 9 December 1987. Mr Wild rightly described the delay that had occurred as “very long”.

I do not set out the explanation in detail, but among other factors mentioned by him at paragraph 4 were (f) the occurrence of what were said to be numerous fruitless attempts to settle all questions of costs without resort to taxation, and (i) the view taken by the Fourth Defendant, Robert Derek Weston, that unless he obtained the consent and participation of the personal representatives of Gladys Weston in the reference ordered by Nourse J., he was at risk as to all the costs of the reference, a risk he was unwilling to take.

Mr Wild explained that a decision had been taken to abandon the reference ordered by Nourse J.: hence the form of order sought.

Mr Glyn Weston’s Affidavit of 26 September 1991, which he sent to the Court that day, confirms that he had read both the Summons and the Affidavit of Mr Wild. A decade later he was to say that he had not seen the Affidavit of Mr Wild. That shows how memory can let one down after a long time.

Mr Glyn Weston was not content with Mr Wild’s proposal. He wanted the Defendants to “withdraw the appeal” [to Nourse J.]. He expressed a series of concerns and asked for the Summons of 3 June 1991 to be dismissed. One of the concerns expressed was that taxation of all parties’ costs might be out of time because it was nearly seven years since the decision of Nourse J.

The court file includes (1) a notice dated 2 July 1991 from Mr R W Weston and Mrs H M Masefield, the personal representatives of Gladys Weston, consenting to Bishops’ summons, and (2) a notice by the solicitor for the 5^th and 6^th Defendants consenting to it. So all the Defendants were agreed on Bishops’ proposal.

There was a hearing before Master Gowers on 4 October 1991. The Order refers to a Summons issued by the Fourth Defendant and dated 3 June 1991, and to hearing the solicitors for the Fourth Defendant (whereas Bishops were acting for the First and Third Defendants as well). The order was that the proceedings in the action be carried on by the Second Plaintiff (Mr Glyn Weston) against the Fourth Fifth and Sixth Plaintiffs [sic] and against Robert William Weston and Helena Marie Masefield, the personal representatives of the deceased Second Defendant.

Of the application to vary the costs provisions ordered in 1984 there is no mention in the Order. It is not clear from the helpful witness statement of Mr Harrop, a partner in Bishops to whom Mr Wild turned for help (it is not clear, either, to whom Mr Wild had previously been responsible within the firm) how it came about that there is no Order dealing with this matter. There is however a note on the court file which appears to relate to that application, “N.O SOG/LR”, clearly, No order, stand over generally with liberty to restore. It seems never to have been restored.

The failure of any party wishing to recover costs in accordance with the 1984 Orders to attempt to tax between 1984 and 1991 is not reasonably excused. In the case of the Fourth Defendant at least, it was the result of a conscious decision not to proceed in accordance with the Rules. The application in 1991 was an attempt to remedy the state of affairs, but it did not succeed.

Mr Wild apparently continued to try to settle the case from then until his own death early in 1993. What he did not do was to try to proceed in any way in Court, in particular by commencing taxation proceedings. According to Mr Harrop, Mr Wild always felt that settlement was achievable and that such a settlement was preferable and much less costly than pursuing the matter formally. “It was, I believe”, said Mr Harrop, “this belief that he was always close to finalising the matter that resulted in him taking no formal action.”

After Mr Wild’s death, there have been, as Mr Harrop put it, “further communications with a view to reaching a final settlement”, but no party formally referred back to the court. I say formally because various parties at various times were in touch with the Court.

On 24 November 1994 Mr Glyn Weston wrote to the Court enclosing a copy of a sealed taxation certificate for the costs of Coley and Tilley, who had acted for him in the action for a time and were the solicitors who came off the record in 1990. The certificate shows that the costs allowed were £7,445.67 plus VAT, together a total of £8,321.02. Nothing had been taxed off. There were costs of the reference, a taxing fee, the costs of the objections and VAT thereon, resulting in a total liability on the part of Mr Glyn Weston (and Mr Allan Weston and Mr Dennis Weston, who were apparently jointly liable to the solicitors although not parties to the partnership action) of £13,526.23. There was £2,402.50 on cash account to be set off, so the Court had certified £11,123.73 as the net balance due to the solicitors. Of this, £5,205.21 was due exclusively to the unsuccessful challenge to the solicitors’ bill. Mr Glyn Weston asked to be informed of the procedure to enable him, he hoped, to pay the £11,123.73 of costs out of the fund in court.

The Court file shows that an Order was apparently made ordering Mr Glyn Weston to lodge an Affidavit of “facts which justify payment to him out of partnership monies in Court of the sum of £11,123.73 due to his solicitors”. I have not seen such an Affidavit, nor was reference to the enquiry letter of 24 November 1994, or to the Affidavit’s possible existence (or the reason for its non-existence), made in the course of the hearing before me. I came upon that letter while checking, in the considerable papers that the Court had retained over the years, what had happened about the 3 June 1991 Summons that had never been disposed of, and then looked at this November 1994 episode thoroughly.

Mr Glyn Weston’s position is said to have remained that he would not consider anything further in this action until the Defendants had “withdrawn the appeal”, a position I regard as somewhat confused given that the point of Mr Wild’s 1991 application was that the Defendants had decided to give up the benefit that they had obtained by the appeal. Mr Harrop, comparing the parties’ respective positions, has said this in evidence for the application that came before Master Bowman:

“Whatever the claimants might now say about delay and the actions of the defendants, it is a fact that the claimants, presumably because of that sentiment” [insistence on the “withdrawal” of the appeal] “have also turned their back on this action, certainly in the sense of not themselves referring it back to the Court at any stage and allowing the situation about which they now complain to continue”.

He is certainly right that neither party referred the matter back to the Court for a hearing between the parties during a decade in which any hope of settling was belied by experience. The conduct was, in the case of any party which wished to pursue that party’s entitlement to costs in accordance with the 1984 Orders, without reasonable excuse. I agree largely with Master Bowman that it is not possible to say that one party was more to blame than another, though as Messrs. Bishops have been acting throughout their clients did have continuous access to professional advice which should have warned them that the obligation to proceed to tax had arisen at the latest by the end of February 1985.

On 18 April 2000, just before the end of the year in which most continuing proceedings needed to come before the Court in accordance with the transitional provisions on the introduction of the Civil Procedure Rules, Master Bowman ordered that the provisions of paragraph 19 of the Practice Direction to Part 51 of the C.P.R. should be deemed not to apply to the claim and that the proceedings should not be automatically stayed. Having regard to the transitional provisions set out in that Practice Direction, I am sure that (despite the argument of Mr Glyn Weston to the contrary) it has been right that later proceedings have been conducted under the C.P.R.

I do not consider that any party who had, in April 2000, an entitlement to costs under an Order made in 1984, but who by that stage was more than 15 years out of time for proceeding with taxation, was intended to be placed, by the new rules or by the Order of 18 April 2000, either in theory or in practice in a better position than that party was immediately before the making of the Order. Such party would, before the C.P.R. came into force, have needed an extension of time to proceed with the taxation, and would have been at risk of having the costs wholly disallowed. While the new rules are an entirely new procedural code, they were intended, among other things, to reduce the delays which were a feature of litigation. I am resistant to any suggestion that any party’s pre-existing, restricted, ability to proceed to taxation/assessment should have been enhanced by the change of rules.

Still the parties did not bring the matter before the Court. This continued to be without reasonable excuse on the part of any party who wished to recover the costs ordered in 1984. It is particularly regrettable that the parties were not provoked to apply to the Court to proceed, despite the fact that the introduction of the new Rules was accompanied by transitional provisions designed in part to provoke activity in stale cases.

However, Bishops were in a position to have a bill prepared for assessment, and this they did. Eventually, on 1 May 2002, as solicitors for the first, third and fourth Defendants they served a notice of commencement of assessment of a bill of costs totalling £26,456.67 on the claimants. This notice informed the claimants that if they wished to dispute what was a bill of costs for costs to be paid pursuant to Orders dated 7^th May 1965, 19^th November 1965, 19^th January 1968, 19^th March 1974, 23^rd March 1984, 8^th May 1984 and 15^th November 1984, thus, Orders made up to almost 37 years earlier and covering a period of 19½ years ending more than 17 years earlier, they must serve their points of dispute by 23 May 2002, i.e. within 21 days after the earliest date on which Mr Weston was likely to receive the notice. Wainwrights, solicitors for the second, fifth and sixth Defendants then served a bill for costs to be assessed pursuant to the Orders of 8 May 1984 and 15 November 1984. This bill was £6,302.54 and a Notice of Commencement of Assessment was also served.

There was discussion, which obviously did not resolve the dispute. After a meeting, Mr Harrop wrote to Mr Glyn Weston on 21 November 2002 setting out some figures. These provided Mr Harrop’s calculations to show, firstly, what the position would be if Bishops were allowed £26,456.47, Wainwrights were allowed £6,703.89 (I have not investigated the discrepancy, which for present purposes is immaterial), and Mr Glyn Weston were allowed £9,000. This latter figure was not based on any bill of costs, but could be described as a guesstimate. Mr Harrop’s letter explained that:

“At out meeting, you mentioned a figure of £16,000 in respect of your costs. However, the last figure that I can remember being mentioned was £9,000. That is the figure that I have inserted although, of course, we can change that for any figure that can be clearly established.”

£9,000 is not that far from the figure of £8,321.02, which was the figure payable as a result of the taxation certificate sent to the Court in November 1994 (see paragraph 29 above). But of the bills of the solicitors who ceased to be instructed by Mr Glyn Weston in 1982 I have seen no information.

Mr Harrop showed the effect, on the basis of the figures he was using, and on the basis that the costs claimed would be allowed in full, of the alternatives of (a) costs being paid out of the fund before distribution and (b) all parties bearing their own costs. His calculations showed that, without taking account of income tax liabilities, and without there being any interest on costs, the respective positions after payment of costs would, at the stage when the amount in court was £387,336.12, be as I set out in this table, in which I have also added my calculation of the difference to each party according to which method is used:

Mr Harrop and his clients have taken the position (explicitly stated in Court) that they would not seek interest on any costs recovered, which makes a large difference against the outcome which would exist in the (remote) eventuality that the Court allowed any party interest on costs. Accordingly, if the assumption as to Mr Glyn Weston’s costs being £9,000 is correct, the present dispute is at most about the incidence in practice of £15,815 of costs - less if there were material reductions on assessment (for which Mr Harrop also provided a worked example). The figures do alter somewhat if Mr Glyn Weston’s costs were larger than £9,000, which, given that the taxation Order sent to the Court in November 1994 accounts for most of that, I take it that they were, by a significant sum. That the parties have been unable to settle their differences if that is what at stake is deeply regrettable.

The outcome is, however, of differing financial importance to the parties, being most important to those interested in the Estate of Robert Handel Weston both because the sum at stake for them is about twice what is at stake for either of the other groups and because his Estate’s share of the fund in court is by an considerable margin the smallest share.

Although there were certain variations explored by Mr Harrop, the table I have set out does provide a realistic guide to the financial significance of the dispute which the parties then took to Court.

Opposed positions were taken up. Mr Glyn Weston took the view that no assessment of costs should take place and the funds should be distributed in the proportions directed by Master Chamberlain; on that basis, each party would bear that party’s own costs. He appeared to have an alternative view, at least after September 2003, that he should be allowed £9,000, plus interest at 8% p.a. for almost 19 years, plus compensation. The Defendants took the view that the scheme of Master Chamberlain’s Order should be followed, and that the costs should be assessed and paid in accordance with that Order and then the distribution should take place. Applications were then made. The Claimants have not served a Bill and therefore have given no notice of commencement of proceedings.

The core application of Mr Glyn Weston, dated 21 May 2003 (sealed 11 June 2003), was for an order that no party should be entitled to lodge a bill of costs for taxation [assessment], and for consequential orders. One of the factors on which he relies is that he says that:

“... some 18 years have now passed since the Appellants then acting solicitors withdrew from the action, and inevitably, therefore, in such length of time, the Appellants documents and records are, in any event, in total disarray, being mislaid, dispersed, and possibly lost for ever.”

Mr Gregory, for the Defendants, cautions me against ready acceptance of this, pointing out that there is no evidence as to the diligence of any search by Mr Glyn Weston. That submission gained force when I discovered that some of Mr Glyn Weston’s costs had already been taxed more than 10 years ago and that there is a clear decision available as to what those costs properly were. However, as to the earlier costs I take the view that what Mr Glyn Weston says here is credible and that the absence of evidence of a diligent search by a litigant in person after all this time does not diminish the force of what he said about the earlier periods. The solicitors who acted until 1982 ceased to be instructed by him in 1982. I would be surprised if he could, rather than surprised if he could not, provide the materials to enable him to proceed to a detailed assessment of those costs more than 20 years later, and I do not know what material exists which would enable any assessment to be made now.

His problem is that he finds himself unable to proceed with an assessment of his side’s costs, and I believe it to be right that he was and is not in a position to proceed. Accordingly he points out that the effect of the Master’s Order is that the Defendants can have their costs paid out of the fund, while he cannot have his. Thus if the parties are allowed to proceed with the taxation/assessment ordered in 1984, the practical result will be more favourable to the Defendants than the Orders intended.

It is also the case that in that event Mr Glyn Weston’s position would be worse than that which would have existed had the parties settled in 2002 on the basis that his costs should be assumed to have been £9,000, as now they will in effect be taken as nil. As against that, if all assessment is blocked, the Defendants will be worse off than the Orders of 1984 intended, and worse off than a 2002 settlement based as described would have achieved for them.

Bishops applied for the Court to give such directions as might be considered appropriate. They have since been joined by Mr John David Weston as a client.

Mr Dennis Weston then applied by notice of 3 October 2003 to become a Claimant as personal representative and on behalf of the personal representatives of the estate of Ellen Weston.

“The fund in court and associated costs in respect of the claimant party are the direct responsibility of the Prs of Ellen Weston ... and as a P.R. I wish to protect the Estate of Ellen Weston...”

Subsequent correspondence appeared to show him to be at loggerheads with Mr Glyn Weston, as mentioned above.

An Order for directions was made on 10 October 2003. Unfortunately this was issued in two forms, both sealed 15 October 2003. The first said that Mr Dennis Weston’s application to be joined would be adjourned. The second said that it would be adjourned to 5 February 2004. Copies were sent to Bishops for service.

Mr Dennis Weston claims to have been unaware that his attendance on 5 February 2004 would be necessary (he having indicated in his application notice that he was not seeking an oral hearing). There is a letter on the Court file from him dated 23 January 2004 in which he said that he was aware that there was a hearing on 5 February 2004 when his application would be considered. As he asked that the contents of a letter he had written to the Law Society on 20 November 2003 be taken into consideration on that date, the letter is consistent with his knowing of the hearing but not appreciating that he could or should attend to argue his case in person.

On 15 January 2004 Mr J D Weston (Fifth Defendant) wrote to the Court a letter disparaging of Mr Dennis Weston, essentially accusing him of being disruptive, summarising his complaint as being of “perverse attempts to make difficulties and to sabotage any hint of progress.”.

The Order of 5 February 2004 recites, among other things:

“And the Applicant Dennis Weston not appearing or being represented but the Court considering a letter received by fax this day”.

Paragraph 1 of the Order dismissed Mr Dennis Weston’s application to be joined as a claimant, with costs. Mr Dennis Weston then corresponded with the Court. In a letter to Mr Dennis Weston dated 4 March 2004 Master Bowman indicated that he had regarded Mr Dennis Weston’s application as “not only inappropriate but mischievous”.

Mr Dennis Weston filed an Appellant’s Notice on 12 March 2004. In it he contended that:

On the first day I dismissed Dennis Weston’s appeal against the refusal to join him. C.P.R. 19.1 provides, among other things:

I wish to add, in fairness to Mr Dennis Weston, that when he had enquired of the Court in 2003 he was told by the Court Service on 14 March 2003 that the Court file could not be traced and that it was likely that it had been destroyed over the years as part of normal file management procedure. The fact that it turns out not to have been destroyed does not alter the fact that as someone genuinely interested in trying to get matters sorted out he was likely to experience bewilderment and frustration.

Reverting to the costs dispute before Master Bowman, paragraph 3 of Master Bowman’s Order of 5 February 2004 read:

“The Court concluding that it would no longer be practical or expedient, notwithstanding the provision in the in the Order herein on the 15^th November 1984, for there to be a reference to a Taxing Master pursuant to Order 62 rule 7(3) of the Rules of the Supreme Court, the costs of the parties both up to and subsequent to the said Order are to be assessed on an indemnity basis in accordance with the provisions of C.P.R. 44.4.”

Mr Glyn Weston wished to appeal. The costs appeal had a regrettable procedural complication. The permission was limited by Pumfrey J., and it was not open to Mr Glyn Weston to seek to go behind that limitation or to me to allow him to do so. Unfortunately, it was not clear from the face of the Order granting permission exactly what the limitation was. Mr Glyn Weston (for whom his brother Alan was effectively presenting the argument) predictably wanted to argue as widely as permitted.

The background to this was that Mr Glyn Weston said that he had problems with the hearing on 5 February 2004 at the time and concerns about its outcome. One problem was that he regarded Mr Dennis Weston’s letter to the Court of that day as an uncalled for personal attack on the Claimants, and he says that the Claimants (by whom I think he meant himself and Mr Alan Weston) were “‘shell-shocked’, and unable to regain their composure for the entirety of the hearing.” Both because of that and in terms of the way the hearing was, he said, conducted, he did not consider that he had been given a proper opportunity to make submissions at all. He said that he did not consider that the hearing constituted a hearing of the application and that he considered the application still to be before the court for consideration.

What actually happened at the hearing is obscure. The hearing was not recorded. Master Bowman has stated that “No note of what took place (other than that contained in the Order subsequently issued) has been retained.” There is no material note on the Court file. At the stage when the request for a note of what took place (and particularly, of his reasons) reached him, in I think September 2004, the passage of time made it impossible for Master Bowman to attempt to reconstitute a note of what took place.

Mr Harrop, of Bishops had been at the hearing. He had a note which they duly supplied to Mr Glyn Weston. The note is short. It records a hearing which is shown as lasting from 2 to 3.30 p.m., and does so in the equivalent of one A4 page. After dealing with the questions with Mr Dennis Weston’s application and whether Mr J D Weston should be substituted as the representative of the estate of Gladys Weston, the note moved to the question of what was to happen about costs. The note reads:

“- Master felt that order of 15/11/84 required both parties to take action and he cdnt apportion blame for delay since then.

“- Order - costs of all pties be assessed on an indemnity basis, up to present date, to be pd. out of fund before division.

“- our costs be pd. by D. Weston at £1600 total

“- C’s expenses of D2 to be pd. by D. Weston

“- Master made it v. clear that there were to be no pmts out of court until costs had been assessed and resolved.”

What that note does not indicate is anything about Mr Glyn Weston’s submissions or opportunity to make them.

Mr Glyn Weston asked for permission to appeal. This was refused on paper by Peter Smith J., and the application was renewed orally to Pumfrey J., who heard it on 17 June 2004. Neither of them, of course, had a note of the hearing before the Master or any approved note of his reasons.

The transcript of the proceedings before Pumfrey J. includes the following (at p.18G-H):

The Order made by Pumfrey J. provided:

“1.

that Permission to Appeal be granted on the grounds only that the Master should not have made the Order for costs without hearing evidence as to the costs the costs incurred by all parties and hearing submissions thereof”.

The wording of this paragraph is obviously wrong. What was not obvious, when the appeal came on and there was no transcript of the judgment of Pumfrey J. or the hearing before him, was how wrong.

The duplication of the words “the costs” was an obvious mistake. I was also uncertain about the word “thereof”, especially given the presence in the same sentence of an obvious typing error. It seemed to me likely, and when the hearing was resumed it was clear, that the word was a typographical error for “thereon”, which would mean that the submissions referred to were exclusively submissions on the costs incurred by all parties and the evidence as to those costs. If the word was correctly typed as “thereof”, however, it would refer to “all parties”, and would mean that the grounds extended to a general complaint about the failure to hear submissions of parties and the conduct of the hearing, as opposed to a failure to hear submissions on the specific topic. As one of the complaints of Mr Glyn Weston is that he was not given a proper opportunity to make submissions at all, it was necessary to know which. Either he was entitled to complain about the absence of a proper opportunity to make submissions at all, or he should be confined to complaining about a failure to hear evidence and submissions on the specific topic - and I did not know which.

Pumfrey J. had ordered that Mr Glyn Weston must obtain “a transcript of these proceedings, of this judgment, and have that available for the next hearing”. Mr Glyn Weston had tried to do so, but the documents were not available when the appeal started. They were obtained just in time when the length of the adjournment was arranged so that they should be available.

Pumfrey J. said (at paragraph 22) that the grounds upon which Mr Glyn Weston sought to appeal were:

He recorded (paragraph 28) that the lack of any proper record of what happened before the Master left him in a very difficult position. However, “on the point to which I have referred I find myself in genuine doubt as to whether all the relevant factors were considered by the Master ...” (Paragraph 30), and he decided to grant permission on that ground only:

“That is to say that the Master did not consider the position of Mr Glyn Weston 18 years after the event in tendering one or more bills of costs in relation to his expenditure within the period prescribed by the order. And, that the Master should have exercised his discretion to make no order as to costs at all.”

He continued:

“33.

There will be a direction that Mr Glyn Weston is to obtain a record of the Master’s reasons for his judgment, and there is accordingly permission to appeal on that ground alone with that direction. I should just add this. If it should turn out that the Master did take the factors, which I have referred to, into account then I have every expectation that this appeal would be dismissed with costs since it seems to me that this is, as I have indicated, an order well within the range of orders which the Master could have made in the circumstances. Equally, there is a substantial risk that the appeal will be dismissed in any event.”

The Judge ordered that the appeal should be heard as soon as possible after obtaining of the record of the Master’s decision. He also indicated that if at all possible it should be fixed in front of him. The appeal came on, after being taken out of the lists at least once, nearly a year later, and in front of me.

Mr Alan Weston, who assisted his brother Glyn (and me) by being the person effectively making the submissions, found the restriction on the scope of the appeal difficult to handle. The restriction is, however, clear, and I approach the appeal strictly within the terms of the limitation ordered by Pumfrey J. Mr Gregory questioned whether the Appellant’s Notice in fact encompassed that for which Pumfrey J. had given permission. I gave permission, without significant objection from Mr Gregory, for the Appellant’s Notice to be amended so that it did encompass that, but amendment does not enable Mr Glyn Weston to go wider than the permission given by Pumfrey J.

There being no recording of the Master’s judgment and no note from him, the only written material available is the solicitor’s attendance note to which I have referred. This leaves the only record for the reasons for his decision as being:

“Master felt that order of 15/11/84 required both parties to take action and he cdnt apportion blame for delay since then.”

I am not prepared to take the view that this must represent an inadequate note and that the Master must have said something else, still less to infer what that something else might have been. That would have been my position even without the exchange between Pumfrey J. and Mr J. D. Weston that I have set out above, but what Mr J.D. Weston said in that exchange lends support to the view that that was the only reason expressed by the Master. It is certainly possible that the Master decided to make a statement of his decision and the reasons for it in very short form and that the only reason that he did express was the one recorded in the note, and that by inference he did not find that any other factors argued before him should cause a different decision. However, the only proper course is to assume that what is noted represents the judgment that was given and the operative reason for the decision, and that it is not demonstrated that the Master’s reasoning was directed to any other points. In fact, the note looks to me the note of a conscientious solicitor, and I would be rather surprised if such a person had left out a separate reference by the Master addressing the question whether his proposed Order would, given the difficulties the Claimants faced, be fair to them and, if so, why.

As against that, given that the hearing appears to have lasted for an hour and a half overall (an hour and three-quarters according to Mr J. D. Weston), and even allowing for the (probably small) amount of time spent dealing with Mr Dennis Weston’s application, I am confident that there was substantial discussion of the question what should be done about the 1984 costs order and why. But I am not satisfied that the Master approached the taking of the decision correctly, and the absence of any reference to the problem for Mr Glyn Weston posed by the Order upon which the Master decided, and to the question I regard as related, proportionality, leads me to consider that he was wrong in his approach.

In my judgment, the Master ought to have considered evidence as to the costs incurred by all parties; he ought to have heard submissions thereon; and they were a factor relevant to his decision. He appears from the expressed reasons not to have considered them relevant.

Certain provisions of the C.P.R. were the subject of argument. I have referred to the 3-month time for commencing taxation provisions under the previous Rules. The time for giving notice of commencement of assessment is also generally 3 months under the C.P.R.: see rule 47.7 and its table, which sets out “Time by which detailed assessment proceedings must be commenced” - I emphasise, must. However, that is part of Section II of rule 47, which deals with costs payable by one party to another. It is therefore inapplicable to this case: see rule 47.5. The provision requiring commencement of assessment within 3 months in the case of costs to come out of a fund is in rule 47.17A.

That consideration makes rule 47.8, referred to in argument, irrelevant, because it too is in section II of rule 47. It limits the sanctions available to the Court in certain circumstances where there is delay in commencing a detailed assessment, but it is not in point here.

C.P.R. 44.14 provides:

It is in my opinion clear that each party had failed, at the least, to comply with a rule. Any party wanting costs pursuant to the Orders of Master Chamberlain and Nourse J. had failed to comply with the rule requiring the assessment to be commenced within 3 months. The powers under that rule are in my opinion available in this case.

The question whether the Court should, in particular circumstances. allow an assessment to proceed long out of time came before Richards J. (as he then was) in Botham v. Imran Khan Niazi [2004] EWHC 2602 (QB), a costs issue arising out of the defamation actions involving the three celebrated cricketers Ian Botham, Allan Lamb and Imran Khan.

The action was tried in July 1996. Various orders for costs had been made, the last on 31 July 1996, the effects of which that the two Claimants were ordered to pay the Defendant’s costs of their respective actions, but in Mr Botham’s case there was an exception for costs connected with one plea, which were to be paid by the Defendant, and in Mr Lamb’s case there had been certain interlocutory costs orders in the Plaintiff’s favour.

Nothing then happened about costs, in terms of proceedings in Court, for over 7 years, until in October 2003 fresh solicitors went on record for the Defendant and served a bill of costs and notice of commencement of detailed assessment proceedings. The Plaintiffs riposted with an application that the assessment proceedings be stayed or struck out on the grounds of delay, alternatively that the Defendant’s costs of both actions be disallowed under C.P.R. rule 44.14(1). It would be wrong to omit mention of the fact that in the interim there was an appeal of the trial decision to the Court of Appeal, which was withdrawn by consent with no order as to costs in mid-1999, and there was during that period discussion of the costs issues between the parties, which discussion was linked to the proceedings in the Court of Appeal. So the delay from the termination of the appeal proceedings to the service of notice of commencement of detailed assessment proceedings was rather over four years, and as the judgment shows there were some exchanges between the solicitors during that period.

The Judge remarked that “Good sense would have led the parties to a settlement of the outstanding costs issues rather than a continuation of the litigation between them.” I respectfully repeat that observation. I would, however, add a footnote to it. An explanation given in this case for the extreme delay is that parties always thought they would settle the costs issue (a point made but in slightly different terms in the cricketers’ case). I am doubtful whether anyone can really have thought that in this case, but in a case like this it is surely sensible to come back before the court, for at least two reasons: first, that is what the Court Order and rule require; second, the application may provide the catalyst for settlement.

The only live issue before the Judge relevant for present purposes was whether the Defendant’s costs of both actions should be disallowed under C.P.R. rule 44.14(1)(a) for failure to comply with a rule of the court, namely ... the obligation to initiate the taxation process within 3 months of the judgment or order. (See paragraphs 21 and 22 of the judgment).

The stages of argument for the Claimants were:

The Judge accepted the first stage of the argument: paragraph 36.

He did not accept the second point. While he accepted that the process would by now be more difficult that if it had been carried out on a timely basis, his view was that the delay had not prevented a fair assessment of the Defendant’s costs. There might be problems in dealing with the costs on the Claimants’ side but even if the files of their former solicitors had been lost or destroyed that was not something for which the Defendant should be blamed or penalised: it would have been an obvious precaution to obtain them from the solicitors concerned in 2000, well before the firm concerned was dissolved. He was, also, not satisfied that all reasonable efforts had yet been made to track down the files.

He did not accept the proposition as to likely net liability. He expressly accepted that proportionality was a relevant consideration but in the particular case considerations of proportionality did not lead to the conclusion that the Defendant should be denied the opportunity to pursue the matter (paragraphs 42 and 44).

Mr Gregory, for the Defendants who wish to uphold Master Bowman’s Order, argues essentially on the lines of the reasons which led Richards J. to allow the assessments in that case to proceed.

Richards J.’s reference to the parties being as much to blame as each other (paragraph 44) is striking: that is almost exactly the point made by Master Bowman in the present case (though in this case the Master said he was not in a position to distinguish between them, whereas Richards J positively thought that the Claimants before him were as much to blame as the Defendant, and in terms of causation of prejudice, more so.)

Second, the judgment did consider the question of possible prejudice to the paying party and how it was caused. It also shows that proportionality is a relevant factor. These elements are wholly lacking from what is known of the Master’s judgment in this case. Therefore, I consider that, for whatever reason, the Master did not address properly the question of evidence about the costs involved and submissions on it.

The relevant considerations are in my opinion these. (1) The 1984 Orders intended that, subject to the inquiry, the costs should be paid out of the fund before distribution, rather than after distribution. (2) The Defendants had in 1991 abandoned, and have never sought to revive, the advantage of having obtained the reference to the Master as to costs in the period 1979 to 1984. The taxation /assessment could then have proceeded simply on the basis that there was no matter into which the Master was invited to inquire, and accordingly that all costs to 1984 could, in effect, come out of the fund. (3) They were and are in a position to proceed to assessment, having prepared bills whose form has not been in dispute. (4) All parties who might have costs paid out of the fund have delayed grotesquely. (5) One of the Defendants deliberately delayed for a time before 1991 because he preferred not to comply with the rule as to commencement of taxation than to take the costs risk which the reference to the taxing officer had created. (6) The parties were in communication over most of the 20-odd years about resolving the costs issues. (7) Mr Glyn Weston reasonably asserts that he cannot proceed to an effective assessment of his own costs because of documentary disarray. (8) That disarray has not been caused by the Defendants. (9) It is, however, unsurprising that a party who dispensed with his then solicitors in 1982 and was unrepresented for most of the time thereafter should be unable in 2002 to have a proper bill of his pre-1982 costs prepared. (10) Even if the material had been available, the preparation of a proper bill covering the period 1963 to 1982 would have been likely to require professional assistance and therefore further cost. It is unlikely that it could have been done in the time specified by the Master, and an extension of time would in fairness have been necessary. (11) In 2002, there were the discussions in the course of which Mr Harrop put forward the figures I have mentioned and indicated a willingness to work on an assumption that Mr Glyn Weston’s costs were £9,000. That figure was put forward because Bishops recollected, not necessarily correctly, that as a figure which had been suggested as representing the costs (and by inference thought it probably realistic and reasonable). They were willing to substitute a higher figure if it were shown to be appropriate. The discussions were conducted by Bishops on the basis of implementing Master Chamberlain’s 1984 Order and using apparently reasonable figures. It looks to me as though Bishops were proposing a pragmatic solution which reasonably followed the scheme of that Order. (12) There is in fact evidence, from the taxation certificate provided to the Court in November 1994, that a Court had taxed part of Mr Glyn Weston’s overall costs at £8,321.02. (13) The likely maximum sum under dispute is not very large. Because Mr Glyn Weston’s total costs will, I believe, have exceeded £9,000, the maximum under dispute may exceed £15,000, but seems unlikely to exceed £20,000, if one leaves out the costs incurred in pursuing the applications before Master Bowman and this appeal. (14) The significance of the decision as to that sum is of relatively small financial importance to those interested in the Estates of Fred Graham Weston and of Charles Stanley Weston, but of relatively greater financial importance to those interested in the Estate of Robert Handel Weston, because of the size of their costs and the proportion of the total fund to which those interested are entitled. (15) There is a public interest, as well as private interests, engaged, in disputes coming to an end. (16) The parties also had an interest in a solution being quicker and less costly rather than slower and more costly: the proceedings could have ended without assessment if the Master had so ordered. (17) It is an open question what difficulty there will be for the Court in assessing costs relating to periods so long ago.

I should record, but it does not influence my decision, that the Defendants had waived any claim to interest on costs. It does not influence my decision because (a) editorial note 47.17A.2 in Civil Procedure 2005 shows the practice to be that no interest is awarded on costs when they are to be paid out of a fund and (b) even if an interest award might be made in some circumstances, the case for disallowance here would be overwhelming.

The factors I have listed are the factors I consider should be taken into account. Among them, I attach very considerable weight to the public interest factor: my own view is that delay of this extreme length does call for justification as to why the assessment should proceed rather than why not. In expressing that view I am very much aware that, when dismissing the permission application on paper, Peter Smith J. expressed the view that the decision of the Master was clearly right, and I have considered carefully whether my view on the significance of the delay is appropriate. With all respect to his observation, I differ from it. I do not think it at all obvious that a party who delayed an application for taxation from 1984/5 under the R.S.C., under which he would need an extension of time, until the C.P.R. came into force, and then for another two years after a direction disapplying paragraph 19 of the Practice Direction to Part 51, should be allowed to proceed with it. If this view needs reinforcement, which I do not think it does, the fact that the costs relate back for a further 20 years before the order for costs was made provides that reinforcement.

If the position were simply that Mr Glyn Weston was not reasonably able to proceed to assessment and that there was no relevant information about the Plaintiffs’ costs, I would allow his appeal and bar all parties from proceeding with assessment, thereby ending the case. The delay, the difficulty for Mr Glyn Weston, the practical unfairness of the financial result of the Master’s decision, the size of the sums involved and the public interest would outweigh the considerations in favour of the Defendants’ position. But what makes this abnormal case very abnormal indeed are that I have had included before me the papers about the 2002 discussions, that they showed that the Defendants were willing to accept Mr Glyn Weston’s costs as being £9,000, and more if he could substantiate it, and the November 1994 correspondence discloses the taxation of costs which were most probably referable to the period 1982 to 1985 (when the relevant solicitors submitted a bill that was unpaid when they went off the record in 1990). I think that, within the very considerable limitations of this case, with the assistance of the £9,000 and £8,321.02 figures, and noting that the order proposed by Mr Glyn Weston has the largest absolute effect on the smallest absolute share of the fund in Court, disadvantaging those concerned in that share and advantaging those concerned in the Fred Graham Weston share, I should consider whether it is not better to look for a solution which does enable a reasonably close approximation to the result intended in 1984 rather than a result which does depart from the scheme of that result. Without the November 1994 letter and taxation certificate I would have allowed the appeal and barred all parties from proceeding with assessment.

I have substantial reservations about adopting a solution of the type for which I am looking, but I think one can be found. Among the reservations is the fact that that 1994 correspondence was unknown during the hearing and that if I propose a solution based on it the parties will have to be given the opportunity to make a submission against it, they wish, when the judgment is to be handed down. My two other main reservations are that I think that an appropriate reaction to the history is to refuse to allow a further step in the Court proceedings, leaving the losses from all parties’ procedural failure where they fall, and that in theory an assessment will delay yet further the moment of distribution. The attraction of a solution allowing the Defendants to proceed with their assessment conditionally on all Defendants lodging at Court within 14 days a statement consenting to Mr Glyn Weston being paid £12,000 out of the fund when (and not before) the Defendants are paid their assessed costs, before the distribution in the proportions ordered by Master Chamberlain, is that it does the best anyone can to minimise losses to all parties, in a situation in which the losses would otherwise fall most on the smallest share of the fund in Court. This has been referred to as a divisive family case. I suspect that any order I propose, subject to argument to the contrary, to make may become yet a further bone of contention, but that the solution I have discussed should be the least divisive because the closest approximation to what was intended in 1984. I intend, subject to any further submissions, to make that order, which in my judgment is the least bad solution to a bad problem.

As my intended order carries with it the disadvantage that the Defendants’ assessments will proceed, I add this. It will be open to Mr Glyn Weston to exercise any rights he has under the Practice Direction to C.P.R. Part 17, section 44. I express the very strong hope that he will decide not to do so. The financial consequence of disputing an assessment is likely to be trivial in the end result for each person who will ultimately benefit from the distribution, and the main effect will be a waste of yet more time and yet more money. My proposed order gives him the benefit of taking a figure for him without his having substantiated all of it, in circumstances in which part of it has already been substantiated to a Court. He himself has failed to proceed with the 1984 Orders for taxation even though he had solicitors apparently until 1985, and he would be wise to recognise that he is not blameless for the present situation. It would, I consider, be most unwise of him to pick another dispute the resolution of which would make only a trivial financial difference and would delay his own and others’ receipt of funds which have been in Court for at least two decades too long.