Dean & Dean (A Firm) v Angel Airlines SA & Ors [2009] EWHC 447 (Ch)

“Actions by and against firms within jurisdiction (O.81, r.1) 81/1 Subject to the provisions of any enactment, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue, or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued. Disclosure of partners’ names (O.81, r2) 81/2 (1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct. (2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1) the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ. (3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words “or may order” to the end. Enforcing judgment or order against firm (O.81, r.5) 5.- (1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction. (2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who- (a) acknowledged service of the writ in the action as a partner, or (b) having been served as a partner with the writ of summons, failed to ackncowle3dge service of it in the action, or (c) admitted in his pleading that he is a partner, or (d) was adjudged to be a partner. … (4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person. (5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3) give leave to issue execution against that person, and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue of question in an action may be tried and determined. Enforcing judgment or order in actions between partners, etc. (O.81, r.6) 6.-(1) Execution to enforce a judgment or order given or made in – (a) an action by or against a firm in the name of the firm against or by a member of the firm, or (b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common, shall not issue except with the leave of the Court.”

“9Liability of partners Every partner in a firm is liable jointly with the other partners, and in Scotland severally also, for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied, but subject in England or Ireland to the prior payment of his separate debts. … 20Partnership property (1) All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement. (2) Provided that the legal estate or interest in any land, or in Scotland the title to and interest in any heritable estate, which belongs to the partnership shall devolve according to the nature and tenure thereof, and the general rules of law thereto applicable, but in trust, so far as necessary, for the persons beneficially interested in the land under this section. (3) Where co-owners of an estate or interest in any land, or in Scotland of any heritable estate, not being itself partnership property, are partners as to profits made by the use of that land or estate, and purchase other land or estate out of the profits to be used in like manner, the land or estate so purchased belongs to them, in the absence of an agreement to the contrary, not as partners, but as co-owners for the same respective estates and interests as are held by them in the land or estate first mentioned at the date of the purchase.”

“I hereby confirm in my capacity as liquidator that I appoint the law firm Lyndales Solicitors in London to continue this procedure with the objective of recovering the substantial amounts of money owed by Dean & Dean in order to satisfy the creditors listed in the creditors table from the file 862/2004 of the VIIth Section (Commercial) of the Bucharest Tribunal roll. I was expecting confirmation from your side regarding the resolution of the litigation so that I would subsequently submit the account details in which the recovered amounts should be paid. Specifically, on 04/04/2005, when I signed the document required by the solicitors of Dean & Dean I did not have knowledge of all the data and information necessary and I therefore consider the document to be retrospectively invalid.”

“In view of the above, I, the undersigned, in my capacity as judicial administrator with full power and authority to act on behalf of SC ANGEL AIRLINES SA, confirm that the litigation proceedings between this company and the law firm DEAN & DEAN, London, were known to the undersigned, to the creditors, and to the Bucharest Tribunal, Section VII (Commerce). I confirm that, from the beginning of my appointment by the company, it was always understood that the only logical step in the interests of the company and its creditors would clearly be to continue the litigation proceedings through the law firm Lyndales Solicitors, London, in order to reach a solution for the litigation as quickly as possible. Any step to drop this litigation case against DEAN & DEAN would clearly go against the interests of the company ANGEL AIRLINES SA and their creditors, and we impatiently await a favourable outcome to this litigation case. It must be stressed that Lyndales Solicitors, London, were given the power of attorney to represent the company by a decision taken at the Shareholder’s General Meeting of 10/05/2004, before legal proceedings began for the liquidation of the company ANGEL AIRLINES SA, and that another approval by the Commercial Tribunal was not required.”

“For the above reasons, and in view of the provisions of article 24, item 1 and article 27 of Law no. 64/1995, the syndic judge approves the appointment of the law firm LYNDALES of London to provide necessary legal assistance in the lawsuit against the UK firm DEAN & DEAN, for the purpose of recovering the monies owed by the debtor, the urgency of this measure being justified by the fact that the final date established for a ruling in this lawsuit is the 15/05/2005.”

“Mr Browne has explained in detail the paper trail under which Lyndales had been acting in the proceedings to secure the money paid to the Defendant by BAE and for the detailed assessment of the bill rendered by the Defendant on the 24 May 2004 for £444,705.83. It is apparent from the documents to which Mr Browne has referred that the liquidator and the court were fully conversant with the retainer of Lyndales by the shareholders of the Claimant as evidenced by resolution 2, dated 10 May 2004. From the exchange of correspondence between Mr Lacombe-Shaw and Dr Florescu between the 23 November 2004 and the 9 March 2005 and from the minutes and reports dated 15 February 2005 and 17 February 2005 and the statement of Mr Ion dated 25 April 2005, it is readily apparent that once Lyndales had been appointed, their retainer continued in the absence of any discharge by the liquidator or by the court. I prefer the expert evidence of Dr Sabu to the evidence of the 3 experts provided by the Defendant. In particular, I accept the evidence of paragraph 5.3.3 of Dr Sabu which I have set out above. I have not been persuaded by the evidence of Dr Piperea in paragraphs 5-11 that there has been any irregularity or failure to file documents in court in Romania that disentitles Lyndales from recovering their costs in representing the Claimant.”

“We consider that Holland J was seriously misled by the papers put before him. It may be true that Angel had an opportunity to make written representations to him to avoid that possibility. We consider nevertheless that if Holland J had known what we know or had been taken to the points of dispute, or had known of the discussions concerning amendment of the points of dispute, he would never have given permission to appeal. He would certainly not have ordered a complete re-hearing. Nor in the absence of a transcript of the proceedings before Master Seager Berry was he in any position to know that it was wholly untrue that the Master had acted unjustly or unfairly in deciding the issue at all; a most unfair remark to make about the Master. He had done simply what he had set out to do in ordering a preliminary issue on the fourth point and what he had been left by the parties to do following their submissions on 16 January.”

“1. The Deputy Costs Master made two Orders in terms that “The Claimant remains responsible for the payment of fees of Lyndales and the indemnity principle has not been breached”

“… it may be further noted that, as for the period up to 20 April 2005, Dean & Dean always accepted that they would not have appealed so far as the comparatively small sums involved in that period were concerned. And that, as for the period after 20 April 2005, Dean & Dean never had a challenge to that period until it obtained (by misleading the judge) permission to amend its points of dispute from Treacy J: a decision overturned by the Court of Appeal not only in the interests of justice but also on standard case management grounds: and irrespective of whether any appeal would have been allowed to proceed at all. Dean & Dean, while seeking inappropriately to go into the controversial merits of unpleaded matters on the basis of new material after the Deputy Master’s decision (his judgment of 15th February 2006), have not addressed the foundations of the Court of Appeal’s judgment.”

“It is difficult to see how a solicitor can have the same interest as his client either in fact or in law, not least because of his concurrent duty to the court. In any event, this is not the case in which to seek to explore this suggestion further.”

“But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”