Simpson & Ors (t/a Harrow Solicitors and Advocates) v Godson & Ors [2013] EWCA Civ 1339

Case No A2/2012/1224[2013] EWCA Civ 1339
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2012] EWHC 2299 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
His Honour Judge Seymour Q.C.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 4 th November 2013
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE AIKENSLORD JUSTICE SULLIVAN
Between
GAVYN SIMPSON, ELVIN BLADES, RANJAN HERATH and STEPHEN DOWN (trading as Harrow Solicitors and Advocates)Claimants/JUDE DARRELL GODSONDefendants/and OthersApplicants
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Jude Godson appeared in person for in personMr Michael Paget (instructed by M2M Community Solicitors LLP) appeared for second applicant for The third applicant did not appear and was not representedMr Michael Fullerton (instructed by Messrs Harrow Solicitors & Advocates) for respondents
Judgment
[1]This is the judgment of the court to which all its members have contributed. The applications[2]These are renewed applications for permission to appeal by Mr Jude Godson, Mrs Arulanantham Thirumahal and Mr Murugan Gopalan. The applications were adjourned to a hearing by the full court, with appeals to follow if permission granted, by the order of Patten LJ dated 14 February 2013 at an oral hearing. Aikens LJ had previously refused permission to appeal on paper.[3]The three applications concern an order of His Honour Judge Richard Seymour QC, sitting as a Judge of the High Court, dated 2 May 2012 by which he gave summary judgment in favour of Harrow Solicitors against the first applicant, Mr Godson, in the sum of £273,209.87, together with costs on the indemnity basis. Mr Godson applies for permission to appeal against that judgment. By the same order the judge gave summary judgment in favour of Harrow Solicitors against the second applicant, Mrs Thirumahal, for £48,008.16, together with costs on the standard basis. There was also an order that the order for costs should not be enforced without the leave of the court. Mrs Thirumahal, who is the estranged wife of Mr Godson, applies for permission to appeal against the judge’s ruling on costs only. The judge also gave summary judgment in favour of Harrow Solicitors against the third applicant, Mr Gopalan, in the sum of £46,133.14, together with costs on the indemnity basis. The judge dismissed counterclaims by Mr Godson and Mr Gopalan. The nature of the claims against Mr Godson and his defences[4]Mr Godson had been employed by a firm of solicitors, Gupta & Partners, as a book-keeper and accountant. He had some accountancy qualifications. Gupta & Partners was audited by the Legal Service Commission and as a result was restructured with Mr. Blades but without Mr. Gupta. In 2002 its practice was taken over by the firm of solicitors that reconstituted itself as Harrow Solicitors. Mr. Simpson and Mr. Herath are the remaining partners of that firm. Mr Godson then worked for Harrow Solicitors as a book-keeper and accountant. He also became a trainee solicitor with the firm in October 2007 and in due course he qualified and was admitted as a solicitor in October 2009. He was dismissed on 10 December 2008, according to Harrow Solicitors, although there was an issue about that at the hearing of the application for summary judgment. (Mr Godson alleged that he had been employed or re-employed until August 2009). Mr Gopalan was employed by Gupta & Partners and subsequently by Harrow Solicitors as a cleaner, and perhaps for other types of work, between February 2003 and November 2007.[5]The claim by Harrow Solicitors was for sums of money which they alleged had been stolen from the firm by Mr Godson. The details of the thefts were set out in schedules to the fourth affidavit of Mr Elvin Blades, (managing partner of Harrow Solicitors at the time) which was sworn in support of the application for summary judgment. The judge described the manner of the theft in some detail at [6] to [16] of his judgment, which we shall not attempt to summarise. Anyone who is interested can read the judgment which bears the neutral citation [2012] EWHC 2299 (QB) and is available on the BAILII website. It is enough to say that Mr Godson used two principal methods to take money from Harrow Solicitors. The first was by drawing cheques on their account using forged signatures. The sums were paid into bank accounts operated by one or other of the three applicants or into an account in the name of Ananbabasa, which was said by Harrow Solicitors to have been used simply as an alias for Mr Godson. The second method also involved the use of cheques, in this case drawn ostensibly to repay Mr Godson for loans he had made to Harrow Solicitors. They alleged that, although he had lent them money from time to time, he had over-stated the amount of the loans when repaying himself. These two methods were described in very considerable detail in affidavits sworn on behalf of Harrow Solicitors by Mr Blades.[6]In the course of the hearing before Judge Seymour, Mr Godson (who appeared in person before the judge), admitted that he had forged the 51 cheques drawn on the account of Harrow Solicitors referred to at paragraph 20 of the 8th affidavit of Mr Blades. They were written between 5 April 2007 and 4 July 2008 and came from cheque books which had been misappropriated by Mr Godson.[7]Harrow Solicitors had obtained orders for third party disclosure in order to obtain the information that would enable them to piece together the destination of the various sums obtained by cheques forged or falsely drawn by Mr Godson. The results of this work were summarised in schedule 1 to Mr Blades’ 4th affidavit and in various sub-schedules. The details of the transactions and the underlying documents were set out in nine lever-arch files which were before the judge on the application. The application lasted for the best part of three days.[8]Schedule 2 to Mr Blades’ 4th affidavit dealt with the issue of loans which Harrow Solicitors accepted had been made by Mr Godson to the firm. The question was how much Mr Godson had actually lent the firm and whether he had repaid himself (from the firm’s accounts) more than he was due. Schedule 2 identified each element of loan that Harrow Solicitors accepted had been made by Mr Godson and each element that Mr Godson represented had been made by him but which had actually been made by a transfer of office money from the client account to the office account. At the hearing before Judge Seymour Mr Godson did not challenge any of the individual items set out in schedule 2, although he made the more general assertion that he did not accept the accuracy of either schedule 1 or schedule 2.[9]Mr Godson’s defence to the claim was summarised by the judge at [20] of his judgment. We can summarise it even more shortly. First, Mr Godson admitted in his written defence that, “on occasions”, the accounts had been omitted and cheque stubs had been falsified as to date, amount and payee in respect of cheques drawn on Harrow Solicitors’ account. However, his pleaded case (and the one argued before the judge and before us) was that this had been done on the instructions of the managing partner of the firm, Mr Blades. Secondly, Mr Godson admitted that, “on occasions”, fraudulent cheques had been prepared which purported to be for wages and salaries of employees of the firm. Mr Godson said that he had done this on the instructions of Mr Blades. Thirdly, Mr Godson admitted that he had drawn cheques on behalf of himself, his wife or other persons who were not entitled to payment, but said that the ultimate beneficiaries of those cheques were Mr Blades and his partners in the firm and that this too was done on Mr Blades’ instructions. Fourthly, Mr Godson admitted that “on occasions” he had forged the signatures of one or more partners of Harrow Solicitors when signing cheques, but he denied that he had derived any benefit from doing so and said that he had been acting on the instructions of Mr Blades.[10]Judge Seymour noted at [21] of his judgment that although Mr Godson had served an affidavit (his 5th, dated 22 November 2011) of 147 paragraphs and 41 pages in answer to Harrow Solicitors’ application for summary judgment, he did not challenge the accuracy of anything in schedule 1 to the 4th affidavit of Mr Blades. Nor did he do so in any of his other affidavits or at the hearing before the judge. Indeed, as we have already noted, Mr Godson admitted at the hearing that he had forged 51 cheques. The judgment of Judge Seymour[11]At the application for summary judgment Harrow Solicitors’ ultimate claim against Mr Godson was for judgment for a total of £223,831.50 plus interest. The claim against Mrs Thirumahal in its final form was for £39,315.16 plus interest and the claim against Mr Gopalan was for £37,779.14 plus interest. Mr Godson opposed the application against him in its entirety. Counsel for Mrs Thirumahal, Mr Paget, conceded on the second day of the hearing that it was appropriate for there to be summary judgment against her for the sum claimed. The judge described this concession as “very realistic”, given the weight of documentary evidence which demonstrated that she had herself received or benefited from sums totalling that amount. At the hearing before us Mr Paget again accepted this. There remained a further claim against Mrs Thirumahal for the balance of the sum also claimed from Mr Godson, on the footing that she had knowingly assisted him in his thefts. That claim was not disposed of at the hearing and was not dealt with in the main body of the judgment. It is, however, central to Mrs Thirumahal’s application for permission to appeal against the judge’s order for costs against her.[12]As for the claim against Mr Gopalan, the judge accepted that the case was made out against him for the sum claimed. As he did not appear before us to support his renewed application for permission to appeal it must be dismissed unless there is anything in Mr Godson’s submissions which might also help Mr Gopalan’s case.[13]The judge delivered an extemporejudgment at the end of the hearing. It is impressive in its command of the detail of the case. The judge noted that Mr Blades’ 4th affidavit and the supporting schedules and underlying material had been served on Mr Godson about 8 months before the hearing. Schedule 1 set out the details of the transactions which resulted in forged cheques being drawn on the firm’s accounts. Although Mr Godson had served a very lengthy affidavit in response, the judge said that he had “… not sought in any affidavit which has been put before me, or indeed at the hearing before me to challenge by reference to the documentation relied on, the accuracy of anything set out in schedule 1 [to Mr Blades’ 4th affidavit]”. The judge referred to schedule 2 to Mr Blades’ 4th affidavit, which dealt with the issue of the loans which had admittedly been made by Mr Godson to the firm. The judge concluded at [23] that the factual material in schedules 1 and 2 to Mr Blades’ 4th affidavit was accurate, save in one respect which concerned five cheques. The sum represented by those five cheques was deducted from the sum claimed against Mr Godson. At [24] the judge concluded that the overpayment in respect of the loans was £57,378. The defalcations from the office account came to a net total of £195,555. The judge accepted that there were other credits due to Mr Godson. When the value of those credits and the five contested cheques was deducted from the sum claimed the amount claimed from Mr Godson was reduced to £223,731.50.[14]The judge held that it did not matter whether Mr Ananbabasa actually existed or whether the name was simply an alias for Mr Godson, but he concluded at [25] that there was “compelling evidence” that Mr Godson had used the name of Ananbabasa as an alias. Particularly striking, in his view, was the evidence obtained under a third party disclosure order from a casino where Mr Godson used to gamble. It showed that Mr Godson was known both by his own name of Jude Godson and also by the name of Vimalla Ananbabasa. Photographs of Mr. Godson produced by the casino named him both as Mr Godson and as Mr Ananbabasa. The judge recorded that Mr Godson had accepted, in his 6th affidavit, that the photograph from the casino said to be that of Mr Ananbabasa was actually himself and the judge formed the same view on looking at the photograph. The judge rejected the submission of Mr Godson that the material produced by the casino had somehow been manipulated in order to show falsely that he had also been known as Mr Ananbabasa.[15]Having examined the material in schedules 1 and 2 to Mr Blades’ 4th affidavit, the judge concluded at [26] that he was satisfied that Mr Godson had done all the things he was alleged to have done. The judge continued: “Indeed, it appeared from the terms of [Mr Godson’s] defence and counterclaim that he did not seriously suggest the contrary”, but contended instead that it was all done on the instructions of Mr Blades for his benefit and that of his partners in Harrow Solicitors. Mr Godson said that the sums that he had obtained were paid in cash to Mr Blades.[16]The judge then considered the material put forward by Mr Godson in support of this defence. Mr Godson relied in particular on the record of withdrawals from his bank account over a period from 2002 to 2010. However, as the judge pointed out at [28], given that the case of Harrow Solicitors was that the systematic wrongful activities of Mr Godson leading to payments into his account had only taken place between 16 May 2005 and 5 December 2008, it was necessary to concentrate on the withdrawals during that period. The judge concluded that there was “no obvious correlation” between the transactions summarised in schedules 1 and 2 and withdrawals of cash by Mr Godson. He found that “… There is simply not enough cash drawn in the period which is relevant to have enabled Mr Godson to have paid a total sum of something in excess of £220,000 in cash to Mr Blades or one of his partners. That point … is well made by considering the relevant accounts”.[17]The judge then referred to the terms of CPR Part 24.2, which prescribes when the court can grant summary judgment, and to the relevant passages in the notes in the White Book on CPR Part 24.2. These refer to a very well-known passage of the speech of Lord Hobhouse of Woodborough in the leading case of Three Rivers District Council v Bank of England (No 3) [2003] AC 1 at [158]where his Lordship said that the criterion to be applied by a judge on an application for summary judgment is not one of probability but is “absence of reality”. In the same paragraph Lord Hobhouse added that “… there is no point in allowing claims to proceed which have no real prospect of success, certainly not in proceeding beyond the stage where their hopelessness has clearly become apparent”. The judge concluded at [33] that, on the material before him, there was an “absence of reality” in Mr Godson’s defence and that his contention that everything had been done on the instructions of, and for the benefit of, Mr Blades was “wholly unsupported by the material which has been put before the court”. Therefore there had to be summary judgment against him.[18]The judge noted that Mr Godson had put forward a counterclaim. He concluded, at [52] that it disclosed “no sensible cause of action” in respect of a claim for damages, apparently advanced on the basis that he had been unable to find further work as a solicitor after he had been dismissed by Harrow Solicitors in December 2008. All other sums referred to in the counterclaim were taken into account in calculating the sum for which summary judgment was given.[19]The judge then dealt with the case against Mr Gopalan. Since he did not appear at the hearing before us to renew his application, we will not summarise the judge’s reasons for rejecting the allegations made in his defence and counterclaim which led him to the conclusion that there must be judgment against Mr Gopalan for the sum claimed. They can be found in the judge’s judgment.[20]Having given judgment against Mrs Thirumahal for part of the claim against her, the judge made an order for costs which is the only subject of her application for permission to appeal. We shall return at a later stage to the terms of that order. The argument of Mr Godson on the renewed application for permission to appeal.[21]Mr Godson had prepared a very long written submission and seven ring-binder files in support of his application. These were not the bundles that had been before the judge, so cross-referring to them made our task more difficult. Mr Godson’s command of English is poor and this further complicated our task. Inevitably, we can only summarise in the briefest fashion the arguments that he deployed. What follows is intended to refer to matters that are possibly relevant, rather than all the many points that Mr Godson raised in writing and orally.[22]Mr Godson started his oral submissions to us by confirming that all the monies claimed went into one or other of the accounts of himself, his wife or Mr Gopolan. He said that he needed to obtain disclosure in order to establish his case that he did everything on the instructions of Mr Blades. He said that he did not deal with the detail of the schedules to Mr Blades’s affidavits because he did not have the material to do so. However, Mr Godson also appeared to submit that some of the payments represented his salary and some also represented salary paid to Mr Ananbabasa, who he said was also an employee of Harrow Solicitors. Mr Godson also submitted that the judge’s description of the method he had used to forge cheques, as set out at [6] of the judgment, was inaccurate. He further submitted that the firm’s accounts had been falsified and did not show the true position. He submitted that the judge had mischaracterised the evidence from the casino about Mr Ananbabasa, who Mr Godson said was a friend of his. Mr Godson showed us text messages from Mr Blades which indicated that Mr Blades had been asking him for loans. Yet, he complained, the judge had not dealt with those matters at all in his judgment. We note that there was no dispute about this as Mr Blades accepted (in his 10th affidavit) that he had obtained short-term personal loans from Mr Godson.[23]Mr Godson referred us in particular to a text from Mr Blades timed at 8.42 pm on 10 December 2008, the date on which, on Harrow Solicitors’ case, Mr Godson had been dismissed. It said:
“I will help u just leave me to think about the best way to do it I promise u I will help u in the best way I can”
. In written submissions served after the hearing Mr Fullerton pointed out that this text had been dealt with by Mr Blades in paragraphs 55-59 of his 4th affidavit. He said that 10 December was the day on which Mr Godson admitted that he had “stolen two cheques”. In a telephone call Mr Godson had been very distressed and had told Mr Blades that he was going to kill himself. Mr Blades was aware that Mr Godson had suffered family tragedies before and decided to send the text because he was so concerned for Mr Godson’s well-being.[24]Mr Godson also made complaints about the failure of the court to order disclosure of documents in the hands of Harrow Solicitors. He asserted that the effect of an order made on 11 May 2011 by His Honour Judge Thornton QC was that the matter should proceed to trial and that the application for summary judgment should therefore not have been permitted. Mr Godson also made some general assertions of wrong-doing by Harrow Solicitors, including allegations of tax evasion, evasion of VAT payments, paying employees while not putting them on the firm’s payroll, perjury, failing to provide proper training for him, and lying about his period of employment. The submissions on behalf of Harrow Solicitors in relation to the application of Mr Godson[25]Mr Fullerton submitted that Mr Godson had not put forward anything which raised an arguable ground of appeal. He submitted that Mr Godson had advanced no basis for attacking the key evidence in support of the summary judgment, that is, the 4th affidavit of Mr Blades and schedules 1 and 2 to that affidavit and the 8th affidavit of Mr Blades. Mr Fullerton told the court that Judge Seymour had repeatedly invited Mr Godson to select one entry from schedule 1 and demonstrate why it was wrong or even arguably so, but Mr Godson had refused to do so. Mr Fullerton also submitted that Mr Godson had not attempted to show where in his judgment Judge Seymour had erred. Instead, he had simply repeated allegations which the judge had rejected as either lacking reality or irrelevant. Conclusions on the application of Mr Godson[26]The test for whether there should be permission to appeal is whether there is a real prospect of success or some other compelling reason why an appeal should be heard. The arguments of Mr Godson encompass both bases, as we understand them. Effectively, he submitted that the judge failed correctly to evaluate the strength of his defences to the claim and was wrong to give no credence to his evidence or to accept his submission that the whole exercise was carried out for the benefit of Mr Blades and his partners. We think we also detected a faint argument that because Mr Blades and his partners had acted in a fraudulent way, the claim was unsuitable for summary judgment and should have been allowed to go to trial.[27]Mr Godson effectively admits that he forged the cheques on which the claim is based, but says all this was done on Mr Blades’ instructions and for the benefit of him and his partners. Mr Godson does not challenge schedules 1 and 2 to Mr Blades’ 4th affidavit and the sub-schedules. The underlying documents were all before the judge and they were not the subject of challenge either. Therefore, the only basis on which Mr Godson could attempt to defend the claim was by putting forward credible evidence that the money had been returned to Mr Blades for his benefit or that of the other partners of the firm. Mr Godson attempted to do this before the judge and failed to persuade him that there was any substance in that defence, as the judge made clear at [29] of his judgment. Mr Godson did not persuade us that the judge’s conclusion was even arguably wrong.[28]Mr Godson attempted to make collateral attacks on Harrow Solicitors in an attempt to throw suspicions on the honesty of the firm and Mr Blades, but these were all dealt with in the evidence before the judge. Thus, for example, the allegation of fraudulent tax evasion was dealt with in Mr Blades’ 8th and 10th affidavits. The dispute about whether Mr Godson was employed by the firm after his dismissal on 10 December 2008 is irrelevant, as the defalcations complained of all fall into a much earlier period. The circumstances of the text of 10 December 2008 on which Mr Godson so strongly relied (to show that Mr Blades was willing to assist) were dealt with in Mr Blades’ 4th and 10th affidavits, to which we have referred. Harrow Solicitors accepted that Mr Godson had made some genuine loans to the firm, as is evident from the format of schedule 2 to Mr Blades’ 4th affidavit. The claim is in respect of the additional sums that Mr Godson extracted from the firm by transfers from the office account and the client account. The judge was entitled to conclude that schedule 2 to Mr Blades’ 4th affidavit, which Mr Godson had not challenged in any particular, was accurate. Hence the judge’s conclusion on the figures at [24] of his judgment.[29]Mr Godson complained that the claimants had not given disclosure of their bank accounts, which he said would assist him in showing that around £220,000 was provided in cash to Mr Blades or other partners of Harrow Solicitors. However, the argument does not assist him. First, there is no general right of disclosure at the stage of proceedings at which an application for summary judgment is normally made. More importantly, however, such disclosure would do nothing to help Mr Godson show (as he alleged) that he had withdrawn cash from his own account, or from accounts into which sums taken from Harrow Solicitors had been paid, in sufficient amounts to make such payments. Unless he could show an arguable case on this point, there was no justification for obtaining disclosure of the claimants’ bank statements.[30]The judge analysed the evidence that Mr Godson had produced to show what withdrawals he had made. Whatever the details about when money was paid into the accounts and when the cash was withdrawn, there can be no escape from the judge’s conclusion at [29] that “there is simply not enough cash drawn in the period which is relevant to have enable Mr Godson to have paid a total sum of something in excess of £220,000 in cash to Mr Blades or one of his partners”. Mr Godson did not give any details of when he paid cash to Mr Blades or others (save for one occasion on 5 December 2008). Mr Godson’s suggestion that the £5,000 paid on 5 December 2008 was from winnings at a casino is wrong; in fact he had incurred a gambling loss of £5,200 as was confirmed by a letter from the casino, to which Mr Blades referred in his 10th affidavit.[31]In our view, as in that of the judge, the other attempts by Mr Godson to make serious allegations against Mr Blades and others do not assist him in resisting summary judgment. They are either irrelevant or lack any kind of plausibility. There is, as the judge said using Lord Hobhouse’s words, a lack of reality in the defences put forward by Mr Godson. There is no prospect of persuading this court otherwise and there is, in our judgment, no other compelling reason why this appeal should be heard. We therefore dismiss Mr Godson’s renewed application for permission to appeal. The application of Mrs Thirumahal[32]This application is solely concerned with the judge’s order for costs. Mr Paget’s short submission is that paragraph 7 of the judge’s order, that “the Second Defendant do pay the Claimant’s costs of his application for Summary Judgment to be assessed on the standard basis…”, when properly construed, means that Mrs Thirumahal has been ordered to pay the costs of the whole application, including those relating to third party disclosure, not just those relating to that part of the claim against her on which the claimant succeeded, or even just those relating to the total claim against her. He submitted that the order was outside the bounds of what was reasonable.[33]Mr Paget emphasised that the claim against Mrs Thirumahal comprised two separate elements. The first was for the return of sums of money that had been paid into her account. That was the claim for which Harrow Solicitors obtained summary judgment in the principal sum of £39,315.16. Mr Paget accepted that this claim had been resisted until the second day of the hearing, when the bulk of it had been conceded in the morning and the remainder (some £3,000) early in the afternoon.[34]However, there was a second claim against Mrs Thirumahal for the whole of the amount claimed against Mr Godson. That was put on the basis that she had knowingly assisted Mr Godson in his theft from Harrow Solicitors. That claim depended on the claimants’ establishing two elements: first, that they had lost money as a result of Mr Godson’s thefts; and, secondly, that Mrs Thirumahal had knowingly assisted him in those thefts. Mr Paget accepted that Mrs Thirumahal was bound by the judge’s adverse findings against Mr Godson so far as concerned the first element of the knowing assistance claim, but he submitted that the second element, i.e. that she had knowingly assisted him, had not been established and so remained for decision at trial.[35]Mr Paget told us that before the judge this knowing assistance claim against Mrs Thirumahal had been pursued until Mr Fullerton’s final submissions, when he belatedly accepted that the claimants could not succeed on that part of their application because there was a reasonable prospect that she could successfully defend the second element, i.e., whether she had knowingly assisted in the thefts.[36]Mr Fullerton challenged the assertion that the claimants had ever pursued an application for summary judgment against Mrs Thirumahal for the claim based on knowing assistance. He also emphasised that the claim for the smaller amount that had gone into Mrs Thirumahal’s bank account had not been finally conceded by Mr Paget until well into the second day of the hearing. He submitted that the claimants’ intention was to limit the costs as against Mrs Thirumahal to the costs of the affidavit evidence against her and the costs of the application.[37]The application notice issued by the claimants on 6 September 2011 sought “… summary judgment against the First and Second Defendants under CPR 24”. No figures were mentioned in the notice. There was a draft order attached to the application which stated in paragraph 2 that “Summary judgment be entered for the Claimants against the Second Defendant in the sum of ….” and then there is a blank. Judge Seymour said at [30] of his judgment, that “… so far as the second defendant is concerned there is no issue. It is accepted that it is appropriate that there should be summary judgment in the sum of £39,315.16”. There is no mention at all of the second basis of claim against Mrs Thirumahal (for the full sum claimed also against Mr Godson) at that point in the judgment.[38]After the judge had given judgment there was a discussion about costs and other ancillary matters. At [55] the judge acknowledged that there remained a live issue whether Mrs Thirumahal could be found jointly liable with Mr Godson, “… essentially on a knowing assistance basis”. Then at [56] he said:
“That said, this application has succeeded as against the second defendant. In those circumstances it seems to me that it is appropriate to say that the second defendant should pay the claimant’s costs of this application to be assessed on the standard basis ….”

The judge rejected a suggestion that Mrs Thirumahal should pay costs on the indemnity basis.

[39]The statement of the judge in relation to the costs payable by Mrs Thirumahal and the terms of the order are equivocal. It is clear from the application notice and the draft order which accompanied it that originally the claimants intended to keep open the possibility of pursuing an application against Mrs Thirumahal on all bases, but the knowing assistance claim was either not pursued at all or was dropped in the course of the hearing, it being accepted that it could not succeed. Whichever it was, Harrow Solicitors did not win on that issue, save to the extent that Mrs Thirumahal will be bound by the judge’s findings against Mr Godson on the extent of the thefts. Mr Paget expressly stated that he did not wish to make any separate submissions to us on that point, although he did indicate that he would wish to be take advantage of any successful appeal by Mr Godson on the issue of the thefts.[40]Accordingly, in our judgment if the order was intended to make Mrs Thirumahal liable for all the costs of the application against both Mr Godson and Mr Gopalan as well as against herself, it was too broad. The order should have reflected the fact that Harrow Solicitors had succeeded in obtaining summary judgment against her for the sum of £39,315.16 and had succeeded in establishing the thefts of the money, so that she could not thereafter challenge the first element of the knowing assistance claim, but had ultimately failed to obtain summary judgment against her on that claim.[41]In those circumstances we have concluded that Mrs Thirumahal should pay Harrow Solicitors 25% of their costs of the application against her. The remaining costs of the application against her should be costs in the case. The costs that Mrs Thirumahal has to pay now should be assessed on the standard basis but the order is not to be enforced without the permission of the court pursuant to section 11 of the Access to Justice Act 1999.[42]Accordingly we grant Mrs Thirumahal permission to appeal and allow her appeal to the extent we have indicated.