Brake & Ors v Lowes & Ors (Ruling on strike out of Liquidation Application)

NIHAL MOHAMMED KAMAL BRAKE

ANDREW YOUNG BRAKE

SIMON LOWES

RICHARD TOONE

DUNCAN KENRIC SWIFT

THE CHEDINGTON COURT ESTATE LIMITED

Yesterday, I gave judgment in relation to an application relating to what has been called the Bankruptcy Application, and I prefaced that with some background. I am not going to repeat that background, but it is relevant also for the judgment which I am about to give. This concerns a further insolvency application, known as the Liquidation Application, which was issued on 6 February 2019 by Mr and

I should have prefaced this judgment by saying that I am aware that we have had to get quite a lot into a very short time, and so I have not had as much time for consideration as I might have had. Also I have not got an enormous amount of time to give judgment. But I confirm that I have read all the skeleton arguments and all the documents to which I was referred. It is just that, in the time available,

In this application to strike out, Chedington (the applicant) says that the first two applicants in the Liquidation Application, Mr and Mrs Brake, in their capacity as trustees of the Brake family settlement, have no legitimate interest in the relief

The reason that Chedington says that the trust has no legitimate interest is because the trust is an outsider to the liquidation, in the sense that it is not a creditor or a contributory. Instead, the trust's complaint is that it has been denied the opportunity to acquire the cottage. I was referred to the cases of Re Edennote

The Brakes, on the other side, say that this point about their standing has been raised very late. I agree. It has been raised late. But at the same time, it is still some time before the trial and, if it can be dealt with, as the parties wish me to deal with it, then I shall deal with it. If it is a good point, it is none the worse for being raised at a late stage. The Brakes say that the trust has an interest in this application, because their son lived in the cottage, because their furniture and their other possessions were placed there and used, and because the property was also

The Brakes, as I have said, do not claim in a personal capacity in this application, but simply as the trustees of the family trust. Even if they claimed in that personal capacity, they are not creditors of the partnership. They were formerly contributories, but even if there were a surplus in the estate, they would not get any of it because (as they were formerly bankrupt) it would go to their trustees in

However, the Brakes say that they are interested in the bidding process, and it is true that they were bidders, but in their capacity as trustees. So their argument has been effectively that it is not just contributories or creditors that can complain about the process carried on inside a liquidation, but also, to some extent, complete outsiders. They rely in particular on a decision of Mr Justice Sales (as he then was) in Hellard v Michael [2009] EWHC 2414 (Ch), and a decision of the Privy Council in Hickox v Brilla Capital Investments Master Fund SPC Ltd [2015] 2 BCLC 387. Hellard, however, was a case where the trustee in bankruptcy was, in fact, the applicant, so the question of standing did not arise. There was no discussion about this at all. It is true that Mr Justice Sales in that case said, in general terms (at [9]), that the court has “a general supervisory jurisdiction in respect of trustees in bankruptcy to ensure that they behave

So far as concerns Hickox v Brilla, that was a claim that the bidding process in which a judge had become involved had been conducted unfairly. It concerned the liquidation of a company. Hickox was a secured creditor, and Brilla was an unsecured creditor. The sale was in accordance with the court order. The liquidator sold a particular asset of the company to Hickox, and Brilla complained. The claim actually failed on the facts. There was no argument about outsiders, there was no discussion about the test for court intervention and, indeed, the only case cited in the whole judgment was the decision in Carmichael v National Power plc [1999] 1 WLR 2042, HL. This is an authority on the interpretation of oral statements, about as far removed from the test for intervention by the court under section 168 as it is possible to imagine. I cannot regard this case as an authority for the proposition that an outside bidder can complain under section 168 for failure to follow the bidding process. But, in any event, even if it purported to lay down a wider test than that in Re Edennote and Mahomed, it is a decision of the Privy Council, and in accordance with the rules of precedent I must follow decisions of the Court of Appeal (which are binding on me) in preference to decisions of the Privy Council. So I take the view that these cases do not assist the Brakes in relation to the question of the test. The test is

As I have already said, the Brakes have also argued that the trust has a legitimate interest in the outcome of this application because the family trust of which they are trustees was set up for the benefit of the Brakes' son, Tom. Now, I have, this morning, been supplied -- I asked for it yesterday and it has been supplied this morning – with a copy of the Brake family settlement, which I have read. It is dated June 2013, and it is quite a short document, which sets up an entirely discretionary trust with an overriding power of appointment in favour of the class of beneficiaries. That class consisted, at the outset, of the settlor’s son,

But it does not seem to me, without more, that I can say that this trust is “for the benefit of Tom”, except in the limited sense that he is potentially a beneficiary of it. There is no disclosure, for example, of any letter of wishes which says something such as, "We have given you the trustees these discretions, but we

Further arguments that were put forward by the Brakes related to the importance of their rights under article 8 of the European Convention of Human Rights. That article creates a right to respect for private and family life, home and correspondence. It is to be noted that it is not a right to private and family life, home and correspondence, but a right to respect for private and family life, home and correspondence. So it is not every action which would constitute an infringement, because it depends on there being a lack of respect for private and family life, etc, rather than any kind of interference with it, as such. But, in any event, there is an exception in article 8(2) for the protection of the rights of others, so it is clear that some kind of balancing act would have to be carried out. There is no decision that I am aware of that the trustees of a trust, as such trustees, are entitled to the benefit of this article, or in what respects they would be entitled to that benefit. There are cases which say that, in certain respects, a limited company can enjoy the benefit of article 8, but I am not aware, as I say, of any

But, in any event, the article 8 rights which are said to be in play in this case relate to their home. They are the rights of the Brakes as individuals and not as trustees

Mr Davies QC also emphasised the importance of natural justice, especially where officers of the court are involved, and he referred to Re Condon, ex parte James (1874) LR 9 Ch App 609, a well-known case, and others of that kind, saying, "The court should not contemplate that its officers behave in an unfair manner". I quite understand that. The problem, as it seems to me, is that, to say that where insolvency officials behave badly it gives the court the power to award remedies to persons who are otherwise outsiders to the process, opens the door to

It seems to me that whether you have a remedy for a faulty bidding process cannot depend, or should not depend, on whether or not the person who is offering the property for sale and binds himself, or herself, to a particular bidding process is either (a) a private individual and full beneficial owner of the property, (b) a private trustee holding on trust for other people, or (iii) an insolvency official operating a statutory system in an insolvency process. In all of these cases, the same process is being gone through. If it is the case that the bidders offer a process of a certain kind, and bind themselves to carry through that process, but they do not, in fact, provide it, or tell lies in the process, then there will already be common law remedies available to the bidders. I do not see why there should be more protection given to the bidders in the case where the offeror happens to be an insolvency official compared to the other cases. So, for those reasons, I hold that the Brakes do not have standing in relation to this

So far as concerns the other liquidation creditors represented by Ms Lintner, Chedington accepts that they are creditors. But it says, further, they have no legitimate interest because they are only continuing to prosecute the application for the benefit of the Brakes rather than for themselves. I was referred in particular to the decision of Mr Nicholas Strauss QC sitting as a deputy judge in Walker Morris v Khalastchi [2001] 1 BCLC 1. The matters on which Chedington

The respondent, in addition, points to evidence from Mr Ramsbotham and Mr Osgood (former administrator of the partnership) that Mrs Brake obtained proxy votes and used them for her own interests. There is evidence from Dr Guy that AEL, then called Sarafina, engaged Verisona Law Solicitors for the other applicants on the instructions of Mrs Brake, and there is a letter dated

There is also the evidence from Mr Gostelow, one of the new trustees in bankruptcy, about the funding arrangements. He says that originally he was told by Mr Ritchie that he (Mr Ritchie) was providing the funding and that it was not restricted to any particular enquiries. Then he was told that Mrs Brake was funding it, that the funding was limited and that it was tied to claims against the trustee in bankruptcy. He was subsequently told by Porter Dodson (for the creditors) that no-one except Mrs Brake could actually fund these proceedings.

Then there was also correspondence between Stewarts (for Chedington) and Porter Dodson (for the creditors), saying, "We would like information about who is paying your bills and whether you are getting instructions from Mrs Brake", and so on. They were the clearest possible questions. Of course there is no obligation on the creditors to answer any of those questions if they do not wish to. However, they do run the risk, as was pointed out to them at the time, that the court looks at it and says, "Well, this is very serious. Why do you not just say it is not true, if it is not true?" And, of course, answer came there none, of any

Now, in the face of all of that material, if it stood alone, I would hold that that was sufficient to persuade me that Mrs Brake was indeed pulling the strings, and that the creditors were her nominees. The other creditors, however, say, "Well, we are creditors", and Chedington does not deny that. They say "We therefore have standing, unless we are complaining otherwise than in our capacity as creditors, but that is not so in this case". In order to show that the creditors are acting otherwise than in the capacity of creditors, they say that the test is that you have to show, not only that there is no benefit to be gained by them as creditors, but also that their application is advancing interests which are adverse to the liquidation. They rely on a trio of cases -- Walker Morris v Khalastchi, to which

However, the other creditors also say that the court is not in a position to conclude that the other creditors are nominees of the Brakes, and they rely on a statement by Mr Ritchie in which he expressly says, "My company is not a nominee for the Brakes". There is a witness statement from the creditors' solicitor, Ms Burcher, saying, "I confirm the statements made in Mr Ritchie's witness statement", which seems, therefore, to be along the same lines. There is a further witness statement of Mr Ritchie, but that is really just full of criticisms of the former trustee in bankruptcy and does not actually deny any of the allegations made of fact in the Chedington evidence.

So the question arises whether it is open to the court in these circumstances to find, without there having been any cross-examination of the various witnesses on their witness statements, that, in fact, the creditors are acting as nominees of Mrs Brake. The other creditors say, "You cannot do that". They refer to cases such as Long v Farrer & Co [2004] EWHC 1774 (Ch), which say that, ordinarily, except in cases where you find that the evidence is not credible, you cannot find that somebody is not telling the truth in a witness statement without there being cross-examination, and so on.

However, the answer given by Chedington is that none of the actual factual allegations that are made in their evidence have been denied by any of the other creditors. What is denied, instead, is the legal conclusion; that is, that the creditors are nominees of the Brakes. In this connection, I notice that the other creditors rely on the decision of Mr Justice Newey in Chuku v Chuku [2017] 1 WLR 3137. That is an authority, and a very clear one, on the meaning of the phrase "nominal claimant" for the purposes of the jurisdiction to order security for costs (CPR rules 25.12ff). It is clear from the authorities that bear on that, including Chuku, that you need to show an element of a deliberate duplicity or window dressing in order to show that someone is acting as a “nominal claimant”

But in my judgment, that is not the test which is apt to decide when you are talking about whether one person is, in a general sense, the nominee of another. For example, it is clear on the old authorities which are discussed by

My conclusion on this is that, although Mr Ritchie, and therefore Ms Burcher, deny the conclusion that the other creditors are nominees of Mrs Brake, the actual evidence as to factual allegations of funding and instructions is unchallenged. It is cogent. And it is not denied, when it would have been very easy to do so. I find, therefore, for these purposes, that Mrs Brake is funding and is instructing the lawyers of the creditors, or for the creditors, to do as she tells them. The creditors are, therefore, not putting forward their own case, they are putting forward Mrs Brake’s case, even if -- and it is not necessary for me to decide this -- they actually agree with it. So they are putting forward the application, for the Brakes. Now the Brakes either have a legitimate interest of their own, or they do not. If they do not, the creditors, therefore, add nothing. In my judgment, the creditors do

This is an application by the Brakes to strike out or otherwise obtain summary judgment on an application known as the Cottage Application, which was brought by Mr Duncan Swift, the former trustee in bankruptcy. That application asked for various relief, including declarations concerning the validity of the transactions involving the cottage, West Axnoller Cottage, which Mr Swift had bought, it may be as a nominee, for Dr Guy or Chedington Court Estate from the liquidators of Stay-in-Style.

The basis upon which the application to strike out or for summary judgment was put has rather changed. Before me it was founded essentially on an abuse of process by the former trustee in bankruptcy. That was not, in fact, in the Brakes’ application notice. It is not actually discussed in their skeleton argument. As I understand it, it is not even pleaded in the particulars of claim. But that does not matter, for present purposes, because I am satisfied that the proper course to take in relation to this application is not to deal with it on the basis of abuse of process, even though the evidence put forward, if accepted, would demonstrate a rather alarming state of affairs. That is something which may or may not have to be

For present purposes, what I am concerned with is the fact that the applicant, Mr Swift, knowing of today's hearing, has not appeared to support his application or to defend it in any way, and has not put in any evidence directed to the application to strike out or for summary judgment. What he has put in is a witness statement for the trial in May, and there is an argument as to whether or not the contents of that witness statement are, or are not, relevant to the purposes of today's application. I have not read that witness statement. It arrived, or at any rate was sent to me, over the weekend, and I have not previously been referred to

So the position is that Mr Swift is not here to defend his own application. He has indicated he does not want to, or he accepts that he has no power to continue with it. He certainly has no interest in the subject matter anymore, having been removed from office as trustee in bankruptcy, and his successors as trustees in bankruptcy have not unreasonably taken the view that they are not prepared to carry on the application at this stage. They perhaps seek time in order to consider their position. But the fact is that this application has been made and I must deal with it on the basis of the matters or the facts as they are today. I consider that enough is enough. We cannot have applications being dragged out to the crack of

It appears the concern of Chedington has been the fear that there would be some kind of res judicata caused by the application being struck out. Mr Davies QC, on behalf of the Brakes, has made a number of comments which I think have gone some way towards assuaging those fears. For my part, I am doubtful that the successor trustees (not being parties) would be bound in the same way as Mr Swift would be bound by an order of the court putting an end to these proceedings. I think that the right course for the court to take in these circumstances, therefore, is to say that, since the applicant does not want to go on with them, has not appeared to defend them and his successors in title have not indicated that they wish to do so, I should therefore treat this as a case of want of prosecution. As Mr Davies QC reminded me towards the end of his submissions, where want of prosecution is made out, the appropriate course normally is to

Mr Davies QC applies for his costs of the Cottage Application against Mr Duncan Swift, who is not here. He says that this is a case where there has been a serious breach of duty by the trustee in bankruptcy. Accordingly, I should not only order Mr Swift to pay the Brakes' costs of the cottage application, but I should order

I have to say that, if the evidence which I have been taken to is true, as I have said in my main judgment, that would disclose a rather alarming state of affairs. I think it right, however, to give Mr Swift an opportunity to say why I should not make such an order against him. I will therefore order that I will consider any written representation that he makes which is lodged with the court within the next three weeks, so 21 days from today at 4.00 pm. That will be Tuesday, the 24th. I will consider any such written representations. Alternatively, he can seek a hearing at which he can be represented or attend in person, and Mr Davies QC

This is an application by notice dated 30 January 2020 on behalf of Chedington Court Estate Limited for an unless order in relation to the provision of documents

There are six categories of documents sought. They are in schedule 1, and are as

They concern documents which are said to be relevant to the issue whether the

This application, however, follows earlier disclosure orders that were made in this litigation by Mr John Jarvis QC, sitting as a deputy judge. The first such order I think was made in April 2019, and the most recent in December 2019. It is clear that the court directed Model B disclosure under the disclosure pilot in CPR Practice Direction 51U, which essentially covers (i) key documents relied on by the party giving disclosure and (ii) known adverse documents. The order in December 2019 envisaged that there would be some further points of dispute between the parties and that, therefore, there would have to be, or there would be,

The disclosure pilot provides a new system of disclosure for cases which fall within its scope, cases in the Business and Property Courts. It provides not only for model-based disclosure, which is different from the old standard disclosure and enhanced disclosure regime in CPR part 31, but it also provides for a new regime for seeking orders for further disclosure, or for variation of existing orders. Application can be made under paragraph 17 of the Practice Direction when there has been, or is alleged to have been, a failure adequately to comply with an order for extended disclosure, and there can be an application under paragraph 18 where it is desired to vary an existing order for extended disclosure to make an addition, or make an additional order for disclosure of specific documents. I should say that, for this purpose, "extended disclosure" means any disclosure beyond initial

It is, I think, reasonably clear that what Chedington Court Estate is asking for in this case is an order varying the existing order, and so, therefore, paragraph 18 is

I should also mention very briefly the decision of the Chancellor of the High Court in the Sheffield United Limited LLC case [2019] EWHC 914. There the Chancellor made absolutely clear that there is to be a culture change in the way in which disclosure is dealt with in the Business and Property Courts. It is worth bearing in mind that the rationale for introducing the disclosure pilot was because industry, in particular, was concerned about the cost of disclosure exercises under CPR in modern litigation. It was therefore considered necessary to do all that

I also refer very briefly to a more recent decision of the Chancellor in McParland & Partners Limited v Whitehead [2020] EWHC 298 (Ch) where, at [54], the Chancellor says:

Now, in the present case, I have been taken to the relevant correspondence, and it is clear that, first of all, it was contemplated that there would be some additional disclosure issues which arose, and it was contemplated that there might well have to be an application to the court. So far, so good. However, the request that was originally made in the correspondence, and then followed up in this application, is for documents over a wide period of time (2011-2019). This strikes me as unnecessarily burdensome and oppressive, in order to provide a basis for testing the assertion of the Brakes that they were occupying West Axnoller Cottage as their only or principal residence as at the time of their bankruptcy. My view is that you do not need such wide categories of documents for this, even though some of them may be helpful in that respect. A more restrictive request might have seen a greater degree of co-operation, perhaps, but at least any application

It has been said that the reason why such a wide period was taken was because that was the period during which the Brakes were asserting that they were in occupation. But the point is that the only issue is whether or not it was their only or principal home at the time of the bankruptcy, which is a specific date in 2015, so there is no need to take it as widely as that. It is not helped, of course, by the fact that the response was also lengthy, also detailed and perhaps unnecessarily provocative. But it does not matter at the end of the day, because what I have to do is to consider whether, in accordance with the terms of the Practice Direction,

In particular, there is the question under paragraph 18.3 of whether there is a sufficient witness statement explaining the circumstances in which the original order for extended disclosure was made and why it is considered that that order should be varied. That is something new. It is so that the court, when once it has seen that a disclosure order has been made under the pilot, does not vary that order without properly understanding what led to the order being made in the first place. Now, it is quite true that Dr Guy's witness statement, which I am sure was not prepared by him alone, but on the advice of his lawyers, does provide some

What it does not do is explain why the court decided on Model B disclosure. Therefore, the court is not in a position today to decide whether or not that purpose has gone or whether it should be supplanted or whatever. Secondly, the witness statement does not, in my judgment, explain why the order should be varied. It simply says, "We would like this disclosure. We think we ought to have it because this is an issue which has to be dealt with". The fact is, as I have already said, it would have been possible to formulate the requests in a more moderate manner and then to provide the relevant witness statement which is

So in my judgment, the threshold condition for making an order under paragraph 18 is not met. It is said this is an unduly technical approach to take. Yet, the whole point of paragraph 18.3, as I understand it, is to ensure that the court, before making a variation order and thus changing the rules, as it were, for disclosure and therefore incurring further expense for the parties, should be put into a position in which it knew why the court had done what it did in the first place. That is not something which I have the advantage of knowing today. I do not regard this as a technical defect. I regard this as something rather more substantive. It may be that if paragraph 18.3 had been satisfied, I would have been satisfied under paragraph 18.2 that the variation, certainly not as originally requested, but as restricted, might have been necessary for the just disposal of the proceedings. But that question simply does not arise because, in my judgment, I cannot vary the order in the circumstances. I therefore dismiss the

In relation to the first judgment which I gave yesterday (in the Bankruptcy Application), Mr Davies QC applies for permission to appeal. Contrary to the submission of Mr Sutcliffe QC, I consider that there is a real prospect, in the rather narrow sense in which that phrase is used here, of success on that appeal. This is because, although I applied, or tried to apply, existing authority which is binding on me, nevertheless, the Court of Appeal might decide, for example, that in the rather extreme circumstances claimed to exist in this case there should be a remedy in the insolvency jurisdiction. There is, indeed, no case where such things as are alleged to have happened here have happened before. So although I do not think I was wrong, and think that I applied the authorities, nevertheless it is possible that the Court of Appeal may come to a different conclusion on the

The question that then arises is whether I should decide on the question of permission to appeal at this stage. Mr Sutcliffe suggests that I should not, because then there will be the decision on the revesting question, and that would affect the questions which would otherwise go to appeal. He alternatively says that, in the exercise of my discretion, I should simply extend time for appeal until May. I think that is really kicking the tin can down the road. I think I have to grasp the nettle and say what I think about this case. It seems to me that simply saying I am not going to decide the question yet is -- I will not say it is a “cop-out”, but I say it

So the question is, therefore, whether, in the exercise of my discretion, I think it appropriate to give permission to appeal. I think that the circumstances in which this case appears to me now, or has always appeared to me, are ones which could well justify the time for the Court of Appeal being taken up. In the exercise of my

Mr Davies QC applies for permission to appeal on behalf of the Brakes in relation to the second judgment (concerning the Liquidation Application). Some similar considerations apply here as in relation to the bankruptcy application, but, as Mr Sutcliffe QC points out, this is a more direct application of the relevant authorities. He therefore says that, whereas the other was reading across from the corporate insolvency to the individual insolvency context, this is a direct application of these authorities.

That is true, but I think it is not the end of the story. I think Mr Davies is quite right to point out that the process point has not been addressed in this way by the Court of Appeal, certainly so far as I am aware, and that it is perfectly possible that that Court might come to a different conclusion from me. The question, therefore, is, does that mean there is a real prospect of success of an appeal to the Court of Appeal? In my judgment, it does.

As a matter of discretion, I think it is very difficult for me, having given permission in the bankruptcy case, not to give permission in relation to the liquidation case, because, again, as Mr Davies says, it is all covering the same facts and one sequence. So I will give permission to Mr and Mrs Brake in relation to the second

Ms Lintner, on behalf of the other liquidation creditors, asks for permission to appeal against my decision in the second judgment. She has three grounds on which she relies. Firstly, she says that I have found that the creditors were putting forward the Brakes' case, but if the Brakes, having been given permission to appeal, were to establish that they had a legitimate interest, then it could not be said that the creditors were putting forward a case of someone who had no legitimate interest. I think that is a good point and I think there is a real prospect

As to the second ground, which relates to the evidence of Mr Ritchie and Ms Burcher, Ms Lintner says that, effectively, I am finding that they are not telling the truth without having a cross-examination, and so on. I do not think that is actually right, because what I have done is say that the difference between the evidence put forward by Ritchie and Burcher, on the one hand, and that put forward on behalf of Chedington, on the other, is that Ritchie and Burcher have characterised what has happened as -- they are not nominees, as they would say, as a matter of law, whereas the facts put forward or the allegations put forward in the Chedington evidence leads the Chedington side to say that they are nominees. That is not a disagreement about the allegations themselves. There is no challenge to the actual fact about the funding, about giving instructions, and so on. Therefore, in my judgment, Long v Farrer does not apply to this, because there is no inconsistency between the evidence put forward on behalf of Chedington and the evidence put forward by Ritchie and Burcher. So I do not

As to ground 3, this is that I should not have found that the creditors did not make their applications in the capacity of creditor for the partnership. This, I think, is different again, in that I have found various facts and welded them into a legal conclusion based on my rejection of the test, which Ms Lintner urged on me. I do not personally think it is very likely, but I cannot say there is no real prospect of the Court of Appeal taking a different view on that. Therefore, she crosses the line. I am satisfied, therefore, I should give permission to appeal on ground 3.

I am asked to deal with the question in principle of the costs of these last two days. The rules are well known. The court has a complete discretion in relation to costs, but if the court decides to make an order about costs, there is a so-called general rule. This is that the losing party, the unsuccessful party, should pay the successful party's costs, but the court has the discretion to make a different order in appropriate circumstances. In deciding what order to make, and whether to make a different order, the court will take into account all the circumstances of the case, including a number of factors which are specifically mentioned in the

That is all very well and good in principle, but this is a very complicated case, and has a large number of different strands which, over the last two days, have had to be argued out and resolved, and I have given a number of separate judgments for that purpose. I bear in mind that the court is encouraged not to make issue-based costs orders, because it creates difficulties in identifying the relevant costs and it creates costs about costs. That is undoubtedly a sensible approach, but there are going to be cases where it is unavoidable to make some kind of distinction. Otherwise, you are trying to compare apples and oranges and put them all together and call them the same thing, and that's not sensible either. So I look at the matters that I have had to deal with.

First of all, the applications which took up most of the time -- not all day -- yesterday arose out of an application notice of 30 January 2020 issued by the Chedington side, and in relation to both of those matters, the two standing issues, Chedington were successful. However, the costs which are sought are only the costs of and occasioned by that application notice and nothing in relation to the underlying applications in which the strike-out application was made. But, of course, they do include preparation of other things than the standing issues. They include the disclosure question, which was in fact heard this afternoon, and resulted in success for the Brakes, and then there was also the cottage application which had to be dealt with, and which took up most of this morning. That question, in my judgment, was resolved essentially in favour of the Brakes, although it is clear that there was a particular concern of Chedington which had to

So I do not think, in all the circumstances, that I am able to simply take a global view of all these different pieces of litigation, parts of the litigation, and say the overall winner, balancing all the apples and oranges together, was this side or that side. That doesn't seem, to me, to be a sensible approach. Mr Davies QC suggested that I try and do it by time, and say, "Today is ours and yesterday -- well, some of yesterday -- was the Chedington’s". That is a beguiling submission. It has the merit, as far as the costs of the hearing are concerned, of being relatively straightforward. What it doesn't do -- and I do not blame Mr Davies for this, because he is not a solicitor -- is help the solicitors to work out where all those costs find their origins, so to speak. So I am not terribly keen on that idea either.

What I can say is that, if I were looking at it in terms of issues, I would definitely say that the Chedington side should have the costs of and occasioned by their application of 30 January, so far as relates to the questions of standing, and also the (alternative) question of security for costs, because that had to be prepared but became unnecessary once the standing point was resolved. If I were then going on to deal with the application being made, or originally made, by Mr Swift relating to the cottage, the cottage application, I would say that, overall, the Brakes were the winners, but that, in the circumstances, I would not give them more than a percentage of their costs of that application to represent the fact that the matter could and should have been resolved earlier than the hearing, and that the hearing was largely -- I won't say it was unnecessary, but it was deprived of much of its necessity, and I would only give them 60 per cent of those costs. Then there is the question of the disclosure application, which I think that the Brakes won quite

So the question is whether it would be sensible for me to deal with this as an issue-based matter or not. Whilst I am reluctant to disregard the encouragement of the higher courts, I think this is one of those rare cases where it will have to be an issue-based order in order to reflect the justice of the case, and I am hopeful that modern solicitor systems will have answers to at least most of the costs,

So I will make an issue-based costs order in the manner that I have indicated: that is, in relation to the application notice of 30 January, the Chedington side have the costs of and occasioned by that application, so far as relates to standing and security for costs; and in relation to the Swift application, the Brakes have