Paul Andrew Whittaker v Bertha UK Limited [2023] EWHC 2554 (Ch)

“25. As per my correspondence in March 2023, I stated that I had not failed in my disclosure obligations regarding my personal email. In addition I offered to conduct a review and explore possible options to address remaining concerns. 26. The Defendant has argued that I have not conducted a thorough search of my over 300,000 emails. However it should be noted that I was unable to access my work emails. The letter for my dismissal without notice was signed by Andrew Case, a Director nominated by Bertha UK to the Company, just prior to the Case Management Hearing. Despite being well aware of my dismissal, the Defendant continues to assert that I have not fulfilled my obligations regarding the search for work-related emails. 27. The Defendant supplied this [sic] emails on 23 March 2023, and had the ability to send these to me much before this date. 28. As of 1 June 2022 I was dismissed without notice, by a grievance committee comprised of 2 Directors nominated by Bertha UK after the Coutts Bank enquiry. A claim for unfair dismissal is in progress. 29. It is apparent that the Defendant would have been aware that my dismissal would make searching my a. work emails, b. Coutts Bank records, c. DASR requests a more difficult exercise. 30. Given my unfair dismissal, I did not have full access to my work email. It would have been unreasonable for me to access it following dismissal without notice, as it could have jeopardised my employment tribunal claim and other litigation.”

“10. As per the correspondence I have engaged with the Defendant’s open proposal made on 3 April 2023, to compromise the Application by way of a consent order. I made a compromise offer of £25,000 and agreed to the Consent order, provided that the search keywords were refined to make the results proportionate. However the Defendant did not accept my offer, leading to the change in my position. 11. I am cooperating with the Defendant, and have engaged in discussions to agree refined keywords for further searches, to comply with the disclosure obligations. I have promptly addressed concerns related to personal emails and consented to additional searches, to help resolve the outstanding issues. However, the Defendant's delay in providing my work emails and DASR documents has hindered the disclosure process. Despite this setback, I remain committed to finding a compromise with the Defendant to ensure that we can fulfil our disclosure requirements.”

“In the months leading up to the trial, the Defendant has engaged in a series of tactics that caused delay to the proceedings, including seeking to amend its claim, blocking the sending of documents relating to my DASR request, and work emails, and making excessive disclosure requests, and refusing to engage in settlement negotiations. In addition in a change of circumstances, removing me as an Employee, Chair and Director of the Company in a change of circumstances (whilst appointing Andrew Case as Chair). Following the disclosure by Coutts Bank about the change of control, Mr Tabatznik emailed the CEO of the Company, “My solution if they are right. I resign as director. Appoint Andrew Case, a lawyer, as director. Or someone else...””

“MR. MACDONALD: Then (c), which does I think still work, is to arrange for the provider to apply the key words. We have set out the key words in appendix 1 of the order. Just to be clear those key words were all agreed back in 2022 and they were the key words that Mr. Whittaker actually applied to the limited disclosure that he gave, so these are new key words, they are not coming out of ether. They have all been agreed. They broadly reflect two items. One is documents relevant to the corporate structure, so that is key words relevant to C's knowledge, and then the value, the finance point, which is key words relevant to C's finances. So this is all done on this order on 28th April and then at paragraph (d) we have a reporting to us on that date of the number of documents that have been collected and the number that are responsive to the keywords. The whole point of that is that if it is then necessary to reduce the keywords or to finesse them we can have a quick, swift and hopefully helpful discussion about it. You will see in sub-paragraph (c) that we provided for the key words in appendix 1 "or such other Keywords as shall be agreed between the parties." We have made it clear in correspondence that we are very happy to be flexible but we do need engagement and helpful input.”

“DEPUTY MASTER MARSH: In any event, you do have access now. You have access to your work email account and you can carry out a search. THE CLAIMANT: As from 22nd March and we are doing the search. DEPUTY MASTER MARSH: So that is a month ago and you are searching it, are you? THE CLAIMANT: We have been trying to apply the method to filter down the keyword searches. DEPUTY MASTER MARSH: Have you undertaken searches using the keywords to establish the number of hits? THE CLAIMANT: Yes, and it is around 300,000. DEPUTY MASTER MARSH: Yes, in aggregate, but are you able to tell me today what the number of hits per keyword is? It is not in your witness statement, because that is all that matters. Some keywords may have no documents responsive to them and some documents may have many tens of thousands of documents responsive to them and most keywords are probably somewhere in the middle. That is how you work out which keywords are likely to be useful. THE CLAIMANT: Yes. DEPUTY MASTER MARSH: But just to say there is a total number of hits of 300,000 is meaningless. THE CLAIMANT: So a report has been requested to Brian(?) following a conversation, I think it was on Monday actually, to produce that initial report, and then we can look at refining the keywords further. This is also partly where the sampling came in and the idea of being random is to show that it was not biased. DEPUTY MASTER MARSH: You say refining the keywords, who is refining them? This is a consensual bilateral process in your mind or something which is unilateral? THE CLAIMANT: No, no, exactly, so based off the reports, as you say per keyword, this is the method we are looking at doing, which is on the keywords number of hits per and then essentially inform the other side of the searches. So, as you say, if there is one search that is triggering something that is 10,000 hits, how can we reduce that noise, or as ---- DEPUTY MASTER MARSH: If you have an aggregate number of hits, you know already the number of hits per keyword, do you not? THE CLAIMANT: Yes. DEPUTY MASTER MARSH: You have the information already. So why has that information not been supplied to the defendants? THE CLAIMANT: It was literally on -- that information has come to me about two hours ago. DEPUTY MASTER MARSH: So you have available to you now a report in some form or another which shows the number of hits per keyword and whether those numbers are de-duplicated or not, yes, or not? THE CLAIMANT: Well, I have not actually read the message, so I would have to check, but -- this is a different one. But a report has been produced today, that is what I do know and it was requested to do a report, exactly what you are describing, which is by keyword. DEPUTY MASTER MARSH: All right. So in principle, on your case then, in relation to your work email account, you have access to that account, work is being done on it, you are able to deal with proportionality to the extent you need to? THE CLAIMANT: Yes -- well, the worry is -- well, okay, a question on that is because White & Case were insisting that every document is searched, so that is where I flagged the worry of proportionality because we can refine keywords but if every document has to be searched and redacted and everything else that would be quite a disproportionate exercise.”

“DEPUTY MASTER MARSH: I am not interested in who they were recommended by but they exist, do they, and are working for you? THE CLAIMANT: For sure. They exist and they are very good and diligent. So they have full access to my personal email web server account. They now have, so eventually received the work emails, so they have that and today -- what I do not know is which report, so I know that one report has been produced because they are running the hit word -- the hit count reports on the personal email and on the work email. They cannot do it as per the draft order for the DASRs because I still have not been supplied those by White & Case. DEPUTY MASTER MARSH: I think you are under a misapprehension about the DASR. As I understand it, it is not the defendant who is going to respond to that request. It is the company. It is Dogwoof. And all they are saying is that to the extent you received documents from Dogwoof you must disclose them to the defendant. It is not a question of carrying out searches. THE CLAIMANT: Yes. Just to qualify that, this then becomes a conduct query so the later parts of my skeleton is, like I say, you know, when Coutts was raised, the board looked very different in the company. And I think you call it retaliation. So since I have raised this query about the change of control -- oh, so Bertha UK says it is a UK company and says that I may have known. Even Coutts Bank did not know. I did ask the directors nominated by Bertha UK to tell Barclays Bank, which was refused point blank by the Bertha directors. There are around four BVI entities ---- DEPUTY MASTER MARSH: I think you need, again Mr. Whittaker I am going to stop you. You need you to stick to the point here. Do you understand what the DASR position is? There is a request to the company, the company will respond. Bertha are not the company, they are simply a shareholder, as you are, and to the extent that you received documents in response to that DASR request you are requested to disclose them to Bertha. It is not difficult.”

“THE CLAIMANT: So as some context for that, so when the order -- in one of the versions of the draft order, the consent order, I did offer a compromise, I did offer agreement. I offered a proposal of a draft order, as you just described to do, actually I agreed to do all four searches of all the data sources, also for the changes of the procedural timetable, I think both parties have agreed that. And I offered 25,000 in costs to avoid this hearing. But that was rejected by the other side. Then having done the further investigation, this is when I changed my position, because I checked into the disclosure certificate, Druces assured me what I had stated in there is correct. There was clearly an unintentional misunderstanding on the personal email, but that we are looking to rectify as soon as possible and the EDP has full access to that that is doing the searches. Now we have the work emails. My simple point on that was the simple argument is that I understand what you are saying it is the company on the work emails. I seem to be being blamed for essentially being removed from the company and then not accessing my work emails and I struggle to get my head around that. For me that feels like a -- I am repeating ----”

“DEPUTY MASTER MARSH: -- any disclosure in relation to BVI documents. All right. At the moment where I am provisionally is that it seems to me the very latest date that your revised disclosure certificate could be provided with the documents that are being disclosed is 19th May and a date for exchange of witness statements 19th June and experts' reports 16th June because effectively the trial is the beginning of July. You cannot have these steps taking place in the days before a trial starts because trials need to be prepared. Is there anything you want to say about those dates? THE CLAIMANT: In discussion, so we did have some good discussions this week, that is one of the reasons why I have become a litigant in person because essentially it seemed to be a bit of an impasse in that February/March period, so, you know, the tactic of this is to essentially make sure that we are talking and getting this moving faster and more efficiently. One of the things that was agreed is we do not think there is a dependency on the expert evidence -- the expert evidence could essentially be run in parallel. I am happy to make that request. I understand where we each get our own report, so we can both get that, and that can be, if not already started, that can be started now. So it is not a dependency on the disclosure is what I am trying to do, and that will set the valuations for the date of the change of ownership on the relevant dates. DEPUTY MASTER MARSH: All right. But even there the joint expert statement will be just a week before the trial starts so absolutely no slippage can be there. But leave the expert evidence on one side for a moment, it is really disclosure and witness statements that have concerned me. If I set a new timetable it is going to be on the basis that the parties have no entitlement to change it between the two of them consensually. It simply is just not possible to let the parties adjust the timetable any further. So this is the last stop, the last-chance saloon for revising the timetable so that we need to set a timetable that is going to be complied with. And I hope you understand that if there are -- if the defendant says there is a failure to comply with orders, they will be saying to the trial judge you should draw adverse inferences. In other words, you may well damage your case. THE CLAIMANT: Yes. DEPUTY MASTER MARSH: So you need to be extremely careful, and indeed they are going to say if you do not comply, I know they are going to apply for further orders with a sanction which will be seeking to strike out the claim, I am sure. So this is a very critical stage. This is the point I was trying to make sue. It is a very critical stage. Do you accept the 19th May date? THE CLAIMANT: For? DEPUTY MASTER MARSH: Disclosure. THE CLAIMANT: It is tight, but yes I have to, don't I? If I can get one more week I would be happier but I can accept 19th May. I obviously do not want to put the trial at risk, but one more week would make a big difference. It is not a must. If Mr. MacDonald -- I do not know, I am happy to take your view on that. DEPUTY MASTER MARSH: Mr. MacDonald? THE CLAIMANT: 19th is fine. DEPUTY MASTER MARSH: Mr. MacDonald, you have been listening to this discussion I am sure. Is there any, so far as the defendant is concerned is there any scope for an adjustment there? This is an open question, it is not me asking, trying to persuade you one way or the other, but just ask the question. MR. MACDONALD: I think the 19th May would be the latest possible date for us. We have tried to give as much time as we think can work. It has to be met on that date. 3 DEPUTY MASTER MARSH: I think, Mr. Whittaker, dates have a habit of slipping, so having said that there will be no ability to extend, I mean, I will build into the order that the parties may agree a 48-hour change to those dates but nothing more than that. 8 All right. So where we have got to is that there will be an order that you provide revised disclosure for 19th May.”

“All right. I am dealing with the question of costs on the defendant's application dated 7th March 2023. I am going to deal with the principle as to whether the claimant should pay the costs of the application and then 16 consider whether, if so, those costs should be paid on the indemnity basis. The application relates to disclosure made pursuant to the order of Master Kaye at the costs case management conference on 9th June 2022. It has been evident for a very lengthy period of time that the claimant has not provided disclosure in accordance with the agreed issues for disclosure and the sources of documents which were agreed to be searched. Efforts have been made by the defendants over a very lengthy period of time to resolve that failure, finally leading to an application. I am in no doubt that the failure to comply with the order is a direct consequence of the claimant's failure to do what was necessary in order to ensure compliance. Attempts were made by his solicitors, who were then acting for him, to say that he was under no further obligation to provide disclosure, but that was plainly wrong. He has now accepted and I have ordered that wide-ranging additional disclosure is to be provided with searches to be undertaken in respect of two important email accounts and attempts to provide disclosure from other sources. The application comes before the court at a critical stage with a trial date in early July 2023. It is vital that the order is complied with if the trial is to take place on a fair and proper basis. It seems to me there can be no order other than that Mr. Whittaker pays the costs of the application. Belated attempts to resolve matters were made and yesterday terms were broadly agreed with a proposal that a contribution to costs of £25,000 be made. However, the skeleton argument that Mr. Whittaker has provided today, together with the draft order, do not match what was said to be the agreement yesterday. In any event, I am satisfied there has been a wholesale failure to comply with the order for disclosure without any proper explanation being provided and it is right that Mr. Whittaker should be ordered to pay the costs of the application. As to the basis upon which assessment should take place, an application is made for an order that the costs be assessed on the indemnity basis. It does seem to me that this is a case which is outside the norm, in the sense that the order for costs was made in June last year. The date for compliance was moved on four occasions to accommodate the claimant's requests. Disclosure was provided shortly before Christmas last year and only then was it apparent that there was a complete failure to comply with the order with a failure to undertake proper searches. Instead of efforts being made to remedy the position promptly, there was a denial on the part of the claimant that there was anything wrong with the disclosure and only now belated -- very belated -- agreement to remedy the position. In my judgment, that takes the application outside the norm and it is appropriate that costs be assessed on the indemnity basis and I now undertake a summary assessment.”

“I am now undertaking a summary assessment of the defendant's costs of their application on the indemnity basis. The headline figure that is sought is slightly in excess of £100,000, including VAT. The issues that arise are relatively limited here. I accept broadly Mr. MacDonald's submission that the hours that are claimed are not in themselves excessive. There has, however, been a model operated here which has involved three fee earners being involved in all aspects of the work together with leading counsel and that inevitably makes the costs claimed more significant than might be objectively justifiable. There is then the question of hourly rates. The grade A associate is charged at £848 which is very significantly above guideline rates. The grade C associate at £496 per hour and grade D trainee and legal assistant at £320 and £292 respectively. The claim is only of moderate complexity. In the range of cases dealt with in the Chancery Division it is somewhere around the median, perhaps a little below the median level of complexity, and the value is not especially high. Therefore, adjustments will need to be made in respect of hourly rates. As to the question of whether this is a case in which the defendants are justified in using leading counsel, it is of note that Mr. MacDonald KC is dealing with this case (at least at present) on his own and it does seem to me that it is a case in which it is proper to instruct leading counsel, or at least proper that the fees of leading counsel are recoverable on an application of this type. Undertaking, therefore, a broad assessment, which is what I am required to do, I am going to summarily assess the costs at £65,000 plus VAT, which I consider to be an appropriate sum.”

“MASTER KAYE: So, Mr. Whittaker, can I cut through? THE CLAIMANT: Yes. MASTER KAYE: How long do you say you need to tidy this up and finish it off, leaving aside the fact that it is likely that Mr. MacDonald will want to, and White & Case may raise queries about it. THE CLAIMANT: Yes. Understood. MASTER KAYE: How long? THE CLAIMANT: A week. I got into this problem last time. We have the documents, right, so in fact I believe we have, apart from DASRs, we have the documents. I would love my DASRs, as you can tell, but that seems to be a battle. But the other documents we have, financial records, well, we have what we -- Gosh, I know I have to pick my phrasing. We have made all the requests to all of the people on the order. Documents have been supplied, all sorts of phone calls have happened and the exercise was completed in December, and I believe again it was, Druces confirmed it was completed. But we have done another round with Goodman and yes. So how long? It needs packaging up, searching for relevance, confidentiality, and then handing over; yes? That should not be a big exercise. We are looking at like, what, 100 documents this time? MASTER KAYE: I have no idea, Mr. Whittaker.”

“MASTER KAYE: Okay. Now tell me about costs. THE CLAIMANT: Yes. Essentially, yes, friends and family, i have a bridging loan. Yes, when I accepted 28 days, I believed that was possible. But people with that type of money, it is in high interest accounts, they do not have it, they are not necessarily having it cash at hand. So I have asked for it. I have been offered it and so I am in the process of getting that money. I am happy to -- well, if I have a chance to follow-up to provide reasons on that and to provide a firmer date, but at the moment, that one would be longer. That would be weeks away at the present, to my current knowledge. MASTER KAYE: Help me with this: why should I give you weeks and why, as a second question, should not any deadline I set be an unless order? THE CLAIMANT: That is probably a good question. I think, actually, to be honest, if this costs order was made as, gosh, 4 what do you call it, costs in the case? MASTER KAYE: No, this is for the £65,000 you owe. THE CLAIMANT: Okay. If it is an unless order again, obviously, I am not a lawyer, I have done some of the reading. That is a difficult question. Is there a reason you should not do that? I think it would be draconian. I think, actually, I think 10 when Master Marsh made that order, he was partly influenced by, well, he was influenced by Mr. MacDonald's statement of £9 million as a valuation. My budget for disclosure originally was £40,000. The defendant's was £180,000. I apologise if that is wrong, but certainly much bigger. I know it is the defendant's costs but that costs order is below, you know, from a budget point of view, I am not expecting a £65,000 bill at this stage, plus the extra cost I have had to go to. No, that just from a cash flow point of view. From a cash flow point of view, it is a bump not budgeted or expected. From a payment point of view, yes, I understand my responsibility to pay it. I have no idea whether that should be an you unless order. I would have to take yourguidance.”

“11. It is common ground that there has not been compliance with the Remedial Disclosure Order. The question for me is really only what sort of order I make in relation to further compliance with it. 12. In relation to the summarily assessed costs – they have not been paid. There is no proper explanation as to what the problem is, although Mr. Whittaker says that he has had to obtain a bridging loan from family and friends. He says that whilst he believed it would be possible to do that within 28 days, it has not proved to be possible. He was vague as to when precisely it might be possible to make the payment. 13. Mr Whittaker says that he had a budget for disclosure of some £41,000. It seemed to me that that was a misunderstanding of what the cost budgeting process is for. The cost budgeting process at the CCMC produced approved or agreed figures for cost budgets including the disclosure phase. Mr Whittaker’s costs budget for disclosure was £41,000. I do not know what he agreed with Druces but a costs budget does not reflect the amount that either party may actually have to spend on a particular phase to undertake the work required in that phase. Nor does it justify stopping work or not undertaking the work necessary that the costs have exceeded the budget. It reflects only the figures which the court considers on the basis of the information available to it at the time that it considers to be reasonable and proportionate for the other party to pay on a standard basis in the event that a costs order is made against the relevant party at the end of the case. It is therefore a red herring. From what I understood Mr. Whittaker had budgeted £41,000 for disclosure and had now discovered that the exercise is somewhat larger and more complex and more expensive. Again no application has been made or was made at an appropriate point to seek to vary the budget. It does not change the obligation to comply with the Remedial Costs Order. I am not clear how that would affect payment of the adverse costs order arising out of a failure to comply with the Remedial Disclosure Order. The costs were summarily assessed by Master Marsh (sitting in retirement). Those costs were entirely separate to the disclosure costs in the budget and were a consequence of the application following the defective disclosure in December 2022. 14. It is clear that there is a gulf between these parties the defendant perceives Mr. Whittaker's attempts to comply as being poorly explained. Although he is clearly able and articulate he is not a lawyer and the language used in his application and witness statement was open to interpretation – raising more questions about what he had been doing and how he had been doing it and whether there were further issues with his disclosure process. He does not always use the right words and it was only when he explained what he meant that it became clear what he is actually trying to explain. 15. However, I have to keep in mind that Mr. Whittaker is not really a litigant-in-person, although he appears before me as a litigant-in-person. He has had solicitors advising him and representing him throughout the majority of this case. The fact that he appeared on the last hearing and appears today unrepresented does not make him a litigant-in-person in the sense of someone who has attempted to undertake all of this work on their own without any assistance at all. For the last month he has had RWK Goodman Derrick, Epiq and AVBT assisting him with the disclosure exercise. Prior to 12 April he was represented by Druces who undertook the original defective disclosure exercise in December 2022. 16. But in any event there is no lesser obligation on an litigant in person to comply with court orders. There is only one authority I need to refer to in relation to litigants in person, but it is well-known. In Barton v Wright Hassall LLP [2018] UKSC 12 Lord Sumption said that where a party is unrepresented: “.. it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties.” 17. That is particularly relevant because it means that the test, for example, for whether to apply an unless order in this case must be applied to the same standard irrespective of whether a party is represented or not. That obviously makes good sense and is part of the backbone of our legal process. Whilst there might be room for some latitude at the margins, the fact that Mr. Whittaker is unrepresented today before me cannot affect the standard against which his compliance with the disclosure obligations is measured and determined.” “.. it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties.”

“(1) The imposition of a sanction for non-payment of a costs order involves the exercise of a discretion pursuant to the Court's inherent jurisdiction. (2) The Court should keep carefully in mind the policy behind the imposition of costs orders made payable within a specified period of time before the end of the litigation, namely, that they serve to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications. (3) Consideration must be given to all the relevant circumstances including: (a) the potential applicability of Article 6 ECHR; (b) the availability of alternative means of enforcing the costs order through the different mechanisms of execution; (c) whether the court making the costs order did so notwithstanding a submission that it was inappropriate to make a costs order payable before the conclusion of the proceedings in question; and where no such submission was made whether it ought to have been made or there is no good reason for it not having been made. (4) A submission by the party in default that he lacks the means to pay and that therefore a debarring order would be a denial of justice and/or in breach of Article 6 of ECHR should be supported by detailed, cogent and proper evidence which gives full and frank disclosure of the witness's financial position including his or her prospects of raising the necessary funds where his or her cash resources are insufficient to meet the liability. (5) Where the defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue to contest the proceedings unless there are strong reasons for not so ordering. (6) If the court decides that a debarring order should be made, the order ought to be an unless order except where there are strong reasons for imposing an immediate order.”

“21. In relation to the costs here, on the last occasion Mr. Whittaker sought and was granted 28 days in which to pay the costs. He did not suggest there was any reason why he could not pay in that time period and he candidly accepted today that he had anticipated being able to pay within that 28-day period. He has not produced any cogent or credible evidence setting out why it is he cannot pay and when he anticipates being able to pay. He is based out of the jurisdiction and has not provided evidence of any assets within the jurisdiction. He does not say he is impecunious. Indeed were he to do so it would substantially undermine his claim. 22. It seems to me, in this particular case, that it is appropriate to make an unless order in relation to the costs. As for the date by which payment should be made, I will come back to that at the end.”

“35. The final matter I need to rule on is the question of costs. I have indicated that a costs order should be made in favour of Bertha, the defendant, against Mr. Whittaker. I have a costs schedule at £64,541.60. 36. Summary assessment on the standard basis means I need to be satisfied the costs are reasonable and proportionate. The element of doubt weighs against the party who is to receive the costs and in favour of the party who has to pay the costs. Summary assessment is a rough-and-ready exercise and I have a very broad discretion generally in relation to costs. 37. In relation to this costs schedule it was accepted by Mr. MacDonald that the hourly rates exceed the guideline hourly rates. Ultimately, I am concerned with what is reasonable and proportionate for this application. 38. In relation to this matter, Mr. MacDonald's fees are £15,000. He has been heavily engaged with this matter and it was an important application on the part of the defendant. However, when I measure that as against the documents item and the other attendances, it seems to me that there is a significant risk in this case that there will have been some element of duplication and relatively heavy reliance on counsel. In that regard, I then look at the documents item and I see that there are some 17 and a half hours' preparing the third witness statement of Mr. Corbett-Graham, together with the exhibit, and then a further 17 hours preparing the bundle. These costs seem to me to be on the high side. I then add to that the schedule of costs for the hearing, which is itself another five hours. Overall it therefore seems to me that the documents item at £23,000 is high. 39. Looking at the other costs, there are in addition internal attendances, obviously internal attendances where you have a team of lawyers, working on a claim are an inevitable part of the process and some of those costs are quite properly recoverable inter partes but I have to take into account the possibility of duplication rather than appropriate delegation. 40. I also note that the attendance of the hearing is at four hours for each of the fee earners attending. Whilst again it is an important hearing for the clients, two fee earners for four hours, which is substantially longer than the hearing, albeit it probably includes travelling, is again on the high side. 41. Taking all of those factors into account, it seems to me I should reduce the costs to reflect that although this was an important application for the defendant and they had to deal with Mr. Whittaker's very late evidence it, none the less, seems to me that £64,451.60 is far too high and the amount I will allow for costs on a standard basis is £45,000. I will summarily assess at that figure.”

“8. There is also an application by Mr Whittaker in relation to disclosure, which, for reasons which will become clear in a moment, the court does not need to resolve and, as of early this morning, an application by way of e-mail communication to the court for an adjournment of the entirety of today's proceedings on the grounds of Mr. Whittaker's ill health; in this case ill health arising from a mixed anxiety and depressive condition. What is said is that he is beset, not just by this litigation but by other litigation, which is going on, as it were, around this litigation. This has brought on some form of panic attack, and he is now in simply no position to comprehend and deal with this case Therefore matters need to be adjourned. He supports that application with no current medical evidence at all. He prays in aid a medical report which goes back some two years, I think, and indicates, and I accept, that he has some form of depressive or anxiety condition. He prays in aid a rather curious sick note dated, I think, 15th June, which, on its face, albeit that it is a Singapore document and is dealing with judicial process in Singapore and not here, specifies, in terms, that it is not a document suitable for establishing unfitness in respect of judicial proceedings. He also prays in aid a document which is really not at all in point as to whether or not he should be allowed to take his dog on an aeroplane. That is the extent of the medical evidence. 9. One is always sympathetic, but one has to say, in the light of the authorities, that this is miles away from the quality of evidence which could encourage a court to grant an adjournment, particularly in the context of a case such as this where there are before the courts applications which are likely to lead to the termination of the proceedings if they are successful, but where if they are not successful the full panoply of a long High Court trial is going to have to be prepared and made ready to take place within three weeks or so. 10. To adjourn these matters, which have tremendous and obvious knock-on effects in relation to the preparation of the case for trial, quite simply the knock-on effects of whether or not there is to be a case to be prepared for trial, to adjourn such applications on such limited material is a strong thing. I would only feel able to grant such an adjournment if I found the circumstances compelling. 11. In that context, in terms of what is or what is not compelling, one has on the authorities, and rightly, to ask whether the adjournment will achieve anything; that is to say whether there are realistic prospects that in this case Mr. Whittaker would be in a position, on an adjournment of his application, to resist the applications that are being brought against him in relation to both his non-payment of costs and also to the inadequacy of his disclosure. 12. I have been through the matter with some care with Mr. MacDonald this afternoon, and I am satisfied that an adjournment in this case, particularly one where the medical grounds are so weakly founded, if founded at all, will achieve no purpose. The reason for that is because it seems to me, with respect, and Mr. MacDonald has taken me through the matters with great care, and answered a considerable number of questions raised by me, that actually the applications brought by the defendant are compelling. Only one of them really needs to be compelling, in context, and that is the one which deals with the non-payment of costs, because if that application succeeds, and if the unless order operates on the basis of the non-payment of costs by Mr. Whittaker, then the case is struck out, there will be judgment for the defendant and everything else effectively falls way.”

“14. That then raises the question with me as to whether, if the function of the process is merely to get in the money, and, subject to what I will say in a moment, it does not impinge upon the continuing preparation of the case going to trial, would a sensible answer not to be to give the claimant a little more time to pay the costs? The claimant has, ultimately, asked for rather more than a little time to pay the costs. He has, in seeking this adjournment to a date later in July, asked for a significant time. However, would there be any harm done, I put it that way, if he was given another week or so to pay the costs, assuming it did not impinge significantly upon the defendant's legitimate concerns in getting this case ready to be heard? 15. There are two answers to that question. The first is that, in this case, I accept from Mr. MacDonald that leaving the question of the strike out uncertain by allowing the claimant even a modest amount of additional time to bring in the costs would impinge, in this case, significantly and prejudicially upon the preparation of the case for trial, because we are now so close to trial that we are now at the time when briefs are to be delivered, when the costs of working up the case for a trial, preparing for bundles, all the hard work that goes into the final three weeks of preparation of a substantial High Court trial. 16. All those costs are about to be incurred and any significant delay, (and significant in this context means effectively even a few days) in knowing the position as to the existence or otherwise of the claim to be tried is going to put the defendant in the position that they must work on the footing that the claim goes on and incur costs and time and expense in circumstances where there is still actually a significant question mark over all that time and expenditure. In this case, even a short adjournment would be prejudicial. 17. There is also this, as it was put to me by Mr. MacDonald, and as I accept, that there is absolutely no indication or clarity to show that, if I were to grant even a limited extension, that would not simply be just another step in the road, in the sense that a few days on, there would be a further application for a further extension, and again time, resources, the run-up time necessary to prepare a major case for trial, all that would be put in jeopardy by further last-minute applications of the nature of the one which has been made by Mr. Whittaker and is before the court today. 18. The conclusion that I have reached, therefore, is that there is no scope here for an extension, even of the very limited nature that I have canvassed, let alone any scope for an extension of the kind that would follow from an adjournment, and that any such extension, or adjournment, would materially prejudice the defendant in a way which would be wrong to countenance.”

“25. For completeness, I should add that Mr. MacDonald and I looked carefully this afternoon at the other limb of the defendant's application, which was to do with disclosure and the debarring order and which was also the subject of a sanction; that is to say Mr. Whittaker would be debarred from putting forward his case on causation on delay and on laches unless he, as I have already explained, put in a disclosure certificate by a particular day; such a disclosure certificate evidencing material and substantial disclosure in accordance with the review disclosure order made by Deputy Master Marsh earlier this year. 26. There has, as already stated, been a disclosure certificate, but Mr. MacDonald has satisfied me -- I am not going to go into the detail -- that although in form there is a certificate, in substance there has not been the necessary substantial and material disclosure. It is particularly salient in relation to financial documents. It is quite clear that various banking documents and bank statements material to issues of causation in this case simply have not been provided. One only has to look at a particular page of a Lloyds Bank statement that has been disclosed to see that it demonstrates the existence of other bank accounts in Mr. Whittaker's name which have not been disclosed. That is, in itself, a substantial non-compliance. It is perfectly plain also that there are financial advisers involved who are relevant to the causation case as providing records of, effectively, Mr. Whittaker's financial ability at relevant dates and times. Although it seems that some enquiries have been made of such financial advisers, very little of any substance has been provided by way of actual disclosure. It may well be, as Mr. MacDonald comments in the course of submissions, that Mr. Whittaker looked at that material from the wrong perspective. He looked at it as to whether these advisers had knowledge of the corporate transactions which underlie this case. That actually was not the function of the disclosure, as was perfectly plain from the disclosure review order. What the disclosure was about was demonstrating Mr. Whittaker's financial position and the merit of his position causatively in terms of whether or not this case could be made out. 27. Having failed in these two obvious and material particulars, it seems to me that he has no effective answer to the debarring order. 28. In the result, there being no effective answer to the defendant’s application, and no realistic prospect of Mr Whittaker varying the outcome that I have already indicated, there is simply no point in adjourning the hearing of these matters to allow Mr Whittaker to attend. 29. I am going to refuse to adjourn the matter. I am going to strike out the claim. I am going to give judgment for the defendant.”

“I know you've paid £25,000 on court fees recently for the Whittaker vs Bertha UK”

“(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence. (2) Where— (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application.”

“To my mind, in agreement with Mr Hunter, the concept of relisting the application effectively means that the court can rehear the application in full and make such different order as it thinks appropriate. It seems to me that the effect of rule 23.11(2) is to give the court a very flexible power as to what it does in relation to setting aside and ordering a rehearing in respect of an order that it made in the absence of a party. I say that it is flexible because rule 23.11(2) contains no fetter on the court's discretion. In my judgment, however, it would be a very rare case where the court exercised this jurisdiction to set aside an order that it had made, if it was satisfied that there was no real prospect of any new order being different from that which it originally made. Furthermore, there may be circumstances where the order has been acted on in such a way as to make it more unjust to set aside the order than to refuse to do so. It also seems to me that the court has a fairly wide discretion as to the terms upon which it may grant or refuse such an application. However, I accept that the court should be careful before it exercises its powers so as to interfere with a party's contractual or other rights. Nonetheless, there may be circumstances where to insist upon one party having its contractual right without qualification would be unjust.”

“(1) The court may proceed with a trial in the absence of a party but— (a) if no party attends the trial, it may strike out the whole of the proceedings; (b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both). (2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part. (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. (4) An application under paragraph (2) or paragraph (3) must be supported by evidence. (5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant— (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.”

“(1) Except where rule 52.7 applies, permission to appeal may be given only where— (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. (2) An order giving permission under this rule or under rule 52.7 may—(a) limit the issues to be heard; and (b) be made subject to conditions.”

“Where the application is for permission to appeal from a case management decision, the court dealing with the application may take into account whether— (a) the issue is of sufficient significance to justify the costs of an appeal; (b) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; (c) it would be more convenient to determine the issue at or after trial. Case management decisions include decisions made under rule 3.1(2) and decisions about disclosure, filing of witness statements or experts’ reports, directions about the timetable of the claim, adding a party to a claim and security for costs.”

“(1) Every appeal will be limited to a review of the decision of the lower court unless— (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive— (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence. (5) At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.”

“32. The first ground for interference speaks for itself. The epithet “wrong” is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G. v. G. (Minors: Custody Appeal) [1985] 1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said, at p. 652: “Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong,’ ‘plainly wrong,’ or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.” 33. So far as the second ground for interference is concerned, it must be noted that the appeal court only has power to interfere if the procedural or other irregularity which it has detected in the proceedings in the lower court was a serious one, and that this irregularity caused the decision of the lower court to be an unjust decision.” “Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong,’ ‘plainly wrong,’ or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.”

“Although the language in these two cases is entirely different, the foundation of the decisions is both consistent and analogous. The conclusions which I derive from the authorities are that: a. the overriding objective requires cases to be dealt with justly. CPR 1.1(2)(d) demands that the Court deals with cases ‘expeditiously and fairly’. Fairness requires the position of both sides to be considered and this is in accordance with Article 6 ECHR. b. fairness can only be determined by taking all relevant matters into account (and excluding irrelevant matters). c. it may be, in any one scenario, that a number of fair outcomes are possible. Therefore a balancing exercise has to be conducted in each case. It is only when the decision of the first instance judge is plainly wrong that the Court of Appeal will interfere with that decision. d. unless the Appeal Court can identify that the judge has taken into account immaterial factors, omitted to take into account material factors, erred in principle or come to a decision that was impermissible (Aldi Stores Limited v WSP Group Plc [2007] EWCA Civ 1260. [2008] 1 WLR 748, paragraph 16) the decision at First Instance must prevail.”

“21. The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs — and, if so, what order — is a matter entrusted to the discretion of the trial judge; (iii) the starting point for the exercise of discretion is that costs should follow the event; nevertheless, (iv) the judge may make different orders for costs in relation to discrete issues — and, in particular, should consider doing so where a party has been successful on one issue but unsuccessful on another issue and, in that event, may make an order for costs against the party who has been generally successful in the litigation; and (v) the judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue; (vi) an appellate court should not interfere with the judge's exercise of discretion merely because it takes the view that it would have exercised that discretion differently. 22. The last of those principles requires an appellate court to exercise a degree of self-restraint. It must recognise the advantage which the trial judge enjoys as a result of his ‘feel’ for the case which he has tried. Indeed, as it seems to me, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge's exercise of his discretion is flawed. That is to say, that he has erred in principle, taken into account matters which should have been left out account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse — see Alltrans Express Limited v CVA Holdings Limited [1984] 1 WLR 394, per Lord Justice Stephenson at 400C–F and Lord Justice Griffiths at page 403G–H.”

“1. The applications before the court in this case are at first sight straightforward. Pending the hearing of the substantive appeal, the appellant seeks a stay of orders made by the judge for the payment of the judgment debt and costs. The respondents make a cross-application for security for their costs of the appeal. 2. Two factors, however, make the case unusual. The first is that the appellant is a limited liability company registered in the British Virgin Islands, with a PO box address in Jersey, and with no assets within the United Kingdom (or, as it would have us believe, anywhere else). The second is that the respondents seek not only to oppose the appellant's application for a stay, but also ask for an order that the appeal be struck out unless, by a given date, the appellant pays or secures the full amount of both the judgment debt and the specific orders for costs made by the judge, as well as providing security for costs in whatever sum the court determines. 3. The application to strike out gives rise to two points point of principle. The first is whether it is a permissible exercise of the court's powers, either when granting permission to appeal or subsequently, to make the prosecution of the appeal conditional upon the payment of the judgment debt and costs. The second is, if so, whether it is appropriate to do so in a case where, as here, the appellant might have to obtain the funds to meet the various orders from a third party. There appears to be little authority on these questions, which seem to us as potentially of some considerable practical importance. It was for this reason that, having heard full argument, we reserved judgment.”

“22. By CPR rule 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”

“18. The only other information we have about the appellant derives from a company search carried out on behalf of the respondents in January 2000. This showed that it was incorporated in July 1992 and was then “in good standing”

“A stay of execution will, of course, prevent the respondents from enforcing their orders for interim payments, but there is no evidence that Joseph can or is likely to dispose of any assets still available to him in a way that will materially prejudice their position in the meantime. On the other hand there are good reasons for thinking that if those orders were to be enforced Joseph would be forced into bankruptcy and it is doubtful, to say the least, whether his trustee would be prepared to pursue the appeal. In those circumstances I have come to the conclusion that the stay imposed by Vos J. on the orders for interim payments should be continued until the determination of the appeal or further order. It follows that I would dismiss the respondents' applications that Joseph be required to satisfy those orders as a condition of being allowed to pursue his appeal.”

“2. There are two differences between the situation that Lord Justice Clarke was contemplating and the situation that faces me. First, Lord Justice Clarke was contemplating an appeal. An appeal can only be brought, save in exceptional cases, with the permission either of the lower court or the appeal court. The grant of permission signifies that whichever court granted the permission took the view that the appeal had a real prospect of success. In the present case, by contrast, there is no permission to appeal because I refused permission, and although I am told that an application will be made to Court of Appeal for permission to appeal, that court has not yet granted permission either. 3. The second difference is that the order which I made is an order for the payment of costs by the would-be appellant. The would-be appellant is, so the evidence goes, significantly better off in financial terms than the putative respondent. So Lord Justice Clarke's first question - what are the risks of an appeal being stifled? - is not an apposite question in the situation that I have to deal with. It is not, on the other hand, suggested by the respondents that there is any risk of their being unable effectively to respond to the appeal without the payment of £40,000.”

“The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event— (a) for a fast track trial, not less than 2 days before the trial; and (b)for all other hearings, not less than 24 hours before the time fixed for the hearing.”

“23. In my judgement, the correct approach is this. Where there is a failure to comply with the Practice Direction and a schedule of costs is not served more than 24 hours before the hearing, the court should take that into account but its reaction should be proportionate. Where there is a mere failure to comply, that is a failure to comply without aggravating factors, it seems to me that the first question for the court should be: what, if any, prejudice has that failure to comply caused to the other party? If no prejudice, then the court should go on and assess the costs in the normal way. If satisfied it has caused prejudice, the next question is: how should that prejudice best be dealt with? To my mind, there would normally be three answers. The first would be to give the paying party a brief adjournment of, say, quarter of an hour or so, to consider the schedule and then to proceed to assess costs. If that course were taken, then the court should bear in mind the fact that the paying party has not had as much time as it should have done, and it should err in favour of a light figure rather than a heavy figure, in any case of doubt. 24. The second possibility would be for the court to stand over the matter for a detailed assessment; if it takes that course, it may well be right to require the receiving party to pay the costs of the detailed assessment or at any rate to make it clear that the costs judge should consider that option when assessing costs. 25. The third possibility would be to stand over the assessment of costs but to keep the assessment on a summary basis. In many cases I suspect that would not require another hearing: it could be dealt with by the parties each sending their respective submissions, and in particular the paying party sending its submissions in writing and for the court to communicate its decision also in writing. 26. I do not take the view, bolstered by the brief observation of the Court of Appeal, that in a case of mere failure to comply, without more, it would be right to deprive a party, otherwise entitled to a summary assessment of his costs, of his costs altogether. 27. However, where there is a failure to apply plus some aggravating factor, then it may very well be right to deprive the party who would otherwise be entitled to his costs, of all or a significant proportion of his costs. For instance, if it can be shown that the party concerned was specifically asked for his schedule of costs in time, and the court is satisfied that the failure to comply was deliberate, that may well justify depriving him of all or some of his costs. Similarly, if the party concerned can be shown to have had a history in the litigation of failing to serve a schedule within time and it had been drawn to his attention, and he still fails to comply, that would be an aggravating factor. It would be wholly inappropriate for me to pretend that I could set out all the aggravating factors, and those are but two examples. Similarly, it may be that there are other factors which are not aggravating factors but which, when taken together with the failure to comply, may suffice to persuade the court that no order for costs should be made in favour of the successful party, or a less favourable order should be made in his favour than if he had complied. But, in the absence of aggravating factors, I think that it would be an unusual case where the failure to comply involved the party who would otherwise recover his costs being deprived of any of his costs save (a) to the extent of the court leaning against him if it carries out an immediate assessment or (b) requiring him to pay the extra costs of a further hearing, be it before the court concerned or before the costs judge.”

“(a) The failure to comply with the Practice Direction was at the lower end of serious. (b) Unlike the provisions relating to costs and management budgets which expressly impose a sanction (unless other factors suggest that the sanction should not be imposed), no sanction is expressly identified in the Practice Direction. Paragraph 9.6 of the Practice Direction simply requires the court to take the failure into account. (c) Exactly the same arguments of principle and of quantification of costs would have been argued and have had to be addressed in any event. The hearing on the handing down of the judgment would, I assess, have taken about another 45 to 60 minutes and there would have had to have been more preparation for the hearing, which would all have cost more at that stage. Although, I suspect, that the costs of dealing with the matter after the event and by way of written representations would be somewhat more than the cost of dealing with a summary assessment at the hearing, I suspect that Group M's additional costs are relatively small and would be unlikely to exceed several thousand pounds at the outside. Carat makes no claim for its additional costs. The court has not been unduly inconvenienced. (d) Having decided that in principle that Carat should have its reasonable costs of its involvement in the Cabinet Office's application, it would be unjust to refuse it any quantified sum simply because for understandable reasons it did not file its Statement of Costs more than 24 hours before the handing down judgment. The prejudice or detriment suffered by Group M is minimal, other than possibly its incurring a small amount of costs (say £2,000) over and above what it would have incurred in any event if the Statement of Costs had been served more than 24 hours before the handing down. To punish Carat for its failure in effect to the tune of some £40,000 plus would to most right thinking people be wholly disproportionate. The additional cost can be taken off any summary assessment to which Carat is found to be entitled.”

“17.1 Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to— (1) serve a further, or revised, Disclosure Certificate; (2) undertake further steps, including further or more extended searches, to ensure compliance with an order for Extended Disclosure; (3) provide a further or improved Extended Disclosure List of Documents; (4) produce documents; or (5) make a witness statement explaining any matter relating to disclosure. 17.2 The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4). 17.3 An application for any order under paragraph 17.1 should normally be supported by a witness statement.”