The Estate of Euan McIntyre Lindsay & Anor v Outlook Finance Limited & Anor [2025] EWHC 3241 (KB)

[2025] EWHC 3241 (KB)Case No KB-2023-002114
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/12/2025
Before
MR JUSTICE KERR
Between
(1) THE ESTATE OF EUAN McINTYRE LINDSAY (deceased)Claimants(2) WILLIAM DONALD LINDSAY (t/a DM LINSDAY)Claimant(1) OUTLOOK FINANCE LIMITEDDefendants(2) RODERICK GRAHAM BUTCHERDefendant
Jeffrey Bacon (instructed by Direct Access) and Gunnercooke LLP) for Claimants for The First Defendant did not appear and was not representedHenry Bankes-Jones (instructed by Kennedys Law LLP) for Second DefendantHearing Hearing dates: 14, 15, 16 and 28 October 2025Post-judgment written submissions: 27 November, 2 and 5 December 2025
Approved Judgment (2) on Consequential MattersThis judgment was handed down remotely at 10.00am on 12 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Mr Justice Kerr :

Introduction

[1]This is my second judgment in this action, dealing with consequential matters following my main judgment given on 26 November 2025; see Lindsay v. Outlook Finance Ltd [2025] EWHC 3100 (KB). The action was brought to set aside a 2014 judgment obtained by fraud. The same abbreviations and definitions are used here as in the main judgment. The judgment sought to be set aside is that of His Honour Judge Bird, sitting in Manchester, in Estate of Euan Linsday (deceased) et al v. Outlook Finance Ltd et al (unpublished, transcript of 2 June 2014) (the Manchester judgment).[2]The claimants (the Lindsays) are from a family of Scottish dairy farmers who had a farm in Scotland and another in Cumbria. The claimants and associated entities obtained loan funds from the first defendant (Outlook) secured on the two farms and certain livestock. Outlook alleged defaults and appointed the second defendant (Mr Butcher) in 2012 as “LPA receiver” in relation to the farm in Cumbria and as agent to take possession of the livestock.[3]In my main judgment, I decided that the Manchester judgment must be set aside and a retrial ordered because of a fraud on the court perpetrated by one Derek Fradgley, now deceased. The detailed reasoning is in the main judgment and I do not repeat it here. I further decided, again for the reasons stated in the main judgment, that the Manchester judgment should also be set as against the Mr Butcher, although it is not alleged against him that he was involved in or complicit in the fraud.[4]The following consequential matters arise:(i) the costs of this action;(ii) whether to disturb the costs orders made in the Manchester proceedings;(iii) the costs of the Manchester proceedings;(iv) any payment on account of costs;(v) permission to appeal; and(vi) expedition and any stay on obtaining directions for a retrial, pending an appeal. I received helpful written submissions on these issues from the claimants and Mr Butcher. I will address each issue in turn. Costs of this Action[5]The parties could not be more far apart on the issue of the costs of this action. Mr Butcher seeks his costs of this action on the indemnity basis. The claimants seek their costs of this action on the indemnity basis. Mr Butcher’s contention is that the claimants have made serious unjustified allegations of fraud against him throughout these proceedings, allegations the court has dismissed. He said it was only on the first day of the trial that the claimants confirmed that such allegations were no long being pursued.[6]Mr Bankes-Jones cites well known authority for the proposition that unjustified or failed allegations of fraud will very often lead to an award of indemnity costs against the other party. I need not repeat his citations here. They are uncontroversial. Mr Butcher, it is said, had no choice but to come to court to defend himself against the allegations of fraud and has successfully done so. There have also been persistent allegations of fraudulent conspiracy between Mr Butcher, Mr Brooksbank and Outlook.[7]For the claimants, Mr Bacon submitted that the claimants’ case has been consistent throughout: that judgment should be set aside against Mr Butcher as well as Outlook because in the Manchester proceedings (as put in Mr Bacon’s skeleton) “he had only succeeded because [Outlook] succeeded” and “fraud infects the whole judgment”, giving rise to the equitable jurisdiction to set aside as against Mr Butcher, which the court has upheld and exercised in respect of Mr Butcher.[8]Mr Butcher could, Mr Bacon submitted, have conceded those points or adopted “a neutral stance”; instead he proceeded and “lost on every point”. He disputed the admissibility of the Henderson Loggie report and Lady Wolffe’s judgment and denied that the latter’s decision was binding even on Outlook. He pleaded up to trial that Mr Fradgley had not deceived the court or given untruthful evidence. He denied that the fresh evidence relied on in these proceedings was new. He began a new phase in the war of attrition the claimants have had to fight in pursuit of justice.[9]Both parties referred to the procedural history in support of their diametrically opposed positions. The relevant history is as follows. This claim was brought on 18 April 2023. The claimants did not then have the new documents referred to in my main judgment. They relied on Lady Wolffe’s findings and the evidence on which they were based, including the Henderson Loggie report, which was considered by her.[10]It was pleaded by the claimants at the outset that Mr Butcher was “guilty of conscious and deliberate dishonesty in the evidence which he gave and/or failed to give in the Manchester proceedings”; he knew “more generally that [Mr Fradgley] was knowingly doing something dishonest but joined in with him to take away [MB Farm] and everything on it” (particulars of claim, paragraph 18d).[11]At paragraph 64, the claimants pleaded that Mr Brooksbank and Mr Butcher knew that Outlook was acting dishonestly, relying in support on correspondence already in the claimants’ possession, concerning the secrecy of the forthcoming seizure of MB Farm, cattle and other property and the subsequent dispute over ownership of the cattle. The correspondence relied on did not include subsequently disclosed documents, not available to HHJ Bird, to which I have referred in the main judgment.[12]They also relied on Mr Butcher’s role in taking possession of MB Farm and cattle and that he had “played dumb” when asked about the matter by Rodger; and on the manner in which possession was obtained and the attempt to put the cattle up for sale without having established undisputed title to them. They pleaded in detail (paragraph 84) the events of 21 November 2012; that Mr Butcher had telephoned Rodger asking for a “chat” while various people including Mr Brooksbank entered MB Farm without permission and were then found there by Kerr Lindsay.[13]They pleaded Mr Butcher’s further role in subsequently granting a tenancy of MB Farm to Beattie. At paragraphs 89-90 they pointed to what they said was substantial correspondence, undisclosed as yet, about advice given by Mr Butcher to Outlook and gave what they said were the best particulars they could, without that correspondence. At paragraphs 91-92, they pleaded:
“It is to be inferred from the facts set out above, that Mr Butcher knew: a. no later than May 2012 that DML was trading Metal Bridge farm (see paragraphs 59, 61 and 68 above); b. he had no right to take the cows under any agreement with MBDFL because they were owned by DML (see paragraphs 59, 68 and 76 above); c. that any sale and leaseback with MBDFL was void under the Insolvency Act (see paragraphs 64(c), 66 above); d. that in any event the sale and leaseback only gave rights to the cattle defined in that agreement; e. that Outlook had no security or rights over any of the machinery at the farm (see paragraphs 60 and 79(b) above); f. that the dairy equipment did not fall under the mortgage pursuant to which Mr Butcher was appointed LPA Receiver; g. that neither MBDFL or anyone else was in possession of the farm, because Willie trading as DML was. 92. Outlook gave instructions to Mr Butcher and Mr Butcher accepted instructions to be appointed as agent and LPA Receiver and/or took steps allegedly by reason of those appointments to take possession of and to sell assets which did not, and which they both knew did not, fall under either the sale and leaseback or the mortgage: a. they both knew the cattle were owned by DML, and that there was therefore no right to possess them under any agreement with MBDFL; b. they both knew that any agreement was with MBDFL was liable to be set side under the Insolvency Act; c. they both knew that a significant number of the cattle on site were not on the sale and leaseback, whether the correct party was DML or MBDFL; d. they both knew that none of the machinery and/or foodstocks and/or dairy equipment was covered under either of the documents under which Mr Butcher was appointed; e. they both knew that what Outlook was proposing and carried out included deliberately misleading the Lindsays. …. .”
[14]The relief sought was, as against Mr Butcher, setting aside the Manchester proceedings; reversal of the costs order in his favour; and “an order that their costs of the Manchester proceedings be paid by Outlook and Mr Butcher and that they should be required to reimburse the costs …. already paid with interest on both sums. Mr Butcher took the decision to rely entirely on [Mr Fradgley’s] evidence which he knew was not the truth” (paragraph 96). They also sought an account of sums received by Mr Butcher as LPA receiver and for the cattle and other property; and that the unaddressed claims against him for conversion and trespass should be dealt with in the retrial.[15]On 18 July 2023, the claimants served their reply to Mr Butcher’s defence. The reply is complicated and has been twice amended since. I need not set it out. Mr Butcher’s solicitors responded by applying on 20 November 2023 for summary judgment or to strike out the claim as against him. A hearing lasting two and a half hours was sought. The application was founded on a witness statement from his solicitor asserting that the claim was time barred because the cause of action accrued more than six years prior to issue and could not be extended as no fraud was alleged against Mr Butcher.[16]The solicitor, Mr David Sumner, argued in his witness statement that HHJ Bird could not have been misled by Mr Butcher because he did not consider Mr Butcher’s evidence; and that, moreover, the outcome could not be set aside as against Mr Butcher because the claimants had “now confirmed in correspondence … and in the Reply … that they do not in fact make any allegation against [Mr Butcher] to the effect that he procured the judgment by fraud … .”[17]On 15 March 2024, Senior Master Cook dismissed the application to strike out the claim or for summary judgment and awarded the claimants assessed costs of £33,420. For the avoidance of doubt, I have no power to revisit that or any other interim costs order and do not seek to do so. In a letter of 15 March 2024, the claimants’ solicitors wrote:
“Separately the Master made the following observation, namely that if the Manchester judgment was obtained by the fraud of Outlook, who was a party to the action, whether or not your client was involved in fraud, he has to be a party to this action to set that judgment aside as Outlook was the medium through which he was able to succeed in that case. Of course, our clients say that Mr Butcher also gave knowingly untrue evidence but the Master’s comments are relevant to a point you have sought to make, that if there is no allegation of fraud against him there cannot be a cause of action.”
[18]Later in the same letter, they asked that Mr Butcher’s representatives reflect on the Master’s comments and stated that “if …. Outlook was dishonest then with or without fraud on the part of your client (and for the avoidance of doubt we say there was fraud), Outlook was the medium through which your client was able to defend the original claim and therefore he needs to be a party to these proceedings.” A case and costs management conference (CCMC) was then held on 10 July 2024. Directions for trial were given. There were further amendments to the pleadings later.[19]Disclosure was given, including by Mr Butcher of documents referred to in the main judgment. The new disclosure was summarised in a letter from the claimant’s solicitors dated 5 May 2025, in which they also summarised the issues and said they struggled to understand why Mr Butcher opposed the proposition that Mr Fradgley had acted fraudulently and why Mr Butcher was defending the claim. His pleaded position was, and remained through to trial, that Mr Fradgley had not been consciously and deliberately dishonest in the evidence he gave in the Manchester proceedings.[20]Mr Butcher’s solicitors responded on 6 June 2025, saying that the claimants could have obtained a default judgment against Outlook (this is not possible in fraud cases). They pointed out that there was still a plea that “the Manchester judgment was in part procured by dishonest evidence on the part of our client … .” They attached a notice to admit facts. They denied the relevance of the Scottish proceedings or the Henderson Loggie report to the claim against Mr Butcher. The notice to admit was later filed on 23 June 2025, requiring the claimants to admit that HHJ Bird had not relied on Mr Butcher’s evidence and that he “did not make any false statements to the Court in the Manchester proceedings.”[21]In response, on 26 June the claimant’s solicitors wrote that since Mr Butcher did not concede Mr Fradgley’s fraud but denied it in his pleaded defence, that matter had to be determined at a trial. Mr Butcher had to be a party to the present action because he would be affected by setting aside the judgment and had directly benefited from the judgment in favour of Outlook in the Manchester proceedings. They again rehearsed the issues. In the letter, they included the following:
“Whilst your client asserts that he had no knowledge of any dishonesty on the part of Mr Fradgley, his amended defence positively asserts that there was no fraud by Mr Fradgley. Whether your client did or did not know of Outlook and Fradgley’s fraud is a matter for the re trial. As we said in our previous letter, we do not understand why your client does not concede the setting aside of the Manchester judgment and, if he sees fit, to then contest the claim at the retrial.”
[22]On 26 June 2025, the claimants amended their particulars of claim, referring to the newly disclosed documents from Mr Butcher. The claimants stated at paragraph 18 that they would at the retrial contend that Mr Butcher defended the Manchester proceedings on a defence they (he and Mr Fradgley) knew was untrue. They maintained reliance on factual matters concerning Mr Butcher’s – and Mr Brooksbanks’ - involvement in the plan to take possession of MB Farm and the property there. They pleaded the new disclosure (paragraph 90A of the amended reply).[23]As against Mr Butcher, they did not resile from the suggestion that he knew of Mr Fradgley’s fraud. They pleaded in relation to the newly disclosed documents (paragraph 93A) that Mr Butcher’s evidence in the Manchester proceedings:
“… that MBFDL was carrying on the dairy farming business was untrue and that he knowingly failed to disclose the documents as to his knowledge that that company had ceased trading on 31/12/2011 and that DM Lindsay was carrying on the dairy farming business from 01/01/2012. He also knew that DM Lindsay had a tenancy at Metal Bridge farm. He also knew that there the documents pursuant to which he was appointed did not include any rights against DM Lindsay as tenant or to any of the machinery or the other assets identified above.”
[24]However, in the same paragraph the claimants suggested that while those matters supported setting aside the Manchester judgment as against Mr Butcher, those averments were a matter for the retrial, as were the claims against Mr Butcher for trespass, conversion and an account. There matters rested until the start of the trial, when there was discussion about the state of the proceedings and I permitted Mr Bankes-Jones to amend his defence to plead laches, as mentioned in the main judgment.[25]He also complained that the allegation of dishonesty against Mr Butcher remained on the pleaded case and had not been formally withdrawn. At the trial on the first day, Mr Bacon made it clear that his case was that the Manchester judgment should be set aside as against Mr Butcher on the basis of Mr Fradgley’s fraud upon the court, irrespective of whether Mr Butcher had given dishonest evidence to that court or not. Mr Bacon said, consistently with the solicitors’ correspondence, that the claimants had “real concerns” about the evidence Mr Butcher gave to HHJ Bird, but:
“… all of those matters as to any question of his honesty are matters for any retrial … we have made it very clear that the consequences of any faith [sic – bad faith?], which is not for this trial; it would be for a retrial … .”
[26]I have considered carefully what costs order is appropriate in the highly unusual circumstances of this case, in accordance with the usual provisions in Part 44 of the CPR. I make it clear that any costs orders made at the interim stages of this action (such as Senior Master Cook’s award of £33,420 on 15 March 2024) stand and are, to state the obvious, unaffected by this judgment. I am addressing the costs of this action in so far as not dealt with by any such interim order for costs.[27]The result of the proceedings was that the claim succeeded. The judgment is to be set aside as against Mr Butcher and not just as against Outlook. At trial, Mr Butcher’s pleaded case was that Mr Fradgley had not been consciously and deliberately dishonest in the evidence he gave in the Manchester proceedings; though Mr Bankes-Jones did not seriously contest the claimants’ contrary position at the trial. The claimants had “real concerns” about Mr Butcher’s evidence in the Manchester proceedings but did not require me to make a finding that it was untrue or dishonest in order to succeed in setting aside the judgment as against Mr Butcher.[28]The basis of the claimants’ success as against Mr Butcher at trial was the proposition that a non-fraudster may have a judgment in his favour set aside where the fraud is of another, if it is equitable to set it aside against both the fraudster and the non-fraudster. That proposition was, I accept, set out in correspondence from the claimants’ solicitor before the trial and was not accepted by Mr Butcher. At trial, he failed to persuade me that the claimants’ proposition was bad or that it would be wrong to exercise the jurisdiction in Mr Butcher’s case.[29]I did not in my main judgment make any finding that Mr Butcher had given dishonest evidence in the Manchester proceedings or otherwise behaved dishonestly or fraudulently; apart from my acceptance of Rodger’s evidence, not disputed by Mr Butcher, that the latter falsely denied knowledge of Outlook’s intentions towards the Lindsays in a telephone call in October 2012 (see the main judgment at [37]). I did not hold that against Mr Butcher because of his professional position (ibid. at [167]) but the incident went some way to convincing Rodger, understandably, that Mr Butcher had “joined in Mr Fradgley’s deceit of us by not telling what was going on … .” ([37]).[30]The present case is unusual. The cases cited by Mr Bankes-Jones are cases where the person alleging fraud is the unsuccessful party. Not so here. Fraud and dishonesty by at least one defendant was the only basis on which the claim could, and did, succeed. Aside from Mr Butcher’s complaint that fraud and dishonesty was wrongly alleged against him, I accept Mr Bacon’s submission that the claimants have succeeded on all issues. But for the issue of making unjustifiable allegations against Mr Butcher, I would apply the general rule that costs should follow the event (CPR rule 44.2(1)(a)).[31]Thus, Mr Butcher contended up to trial that Mr Fradgley had not deceived the court in the Manchester proceedings. That contention failed. He said the evidence from the Scottish proceedings was irrelevant because he took no part in them. That was wrong. His reliance on Hollington v. Hewthorn and Co Ltd was misplaced. Most importantly, he lost the argument over whether an innocent party who benefits from the fraud is subject to the equitable jurisdiction. Mr Butcher’s defences clearly failed. But should I depart from the general rule to any extent by reason of the claimants’ conduct (CPR rule 44.2(4) and (5)(a), (b) and (c))?[32]I do not fully accept the claimants’ submission that their case has been consistent throughout. In the claim as originally pleaded, with the benefit of the documents generated during the Scottish proceedings but without the documents Mr Butcher subsequently disclosed in this action, the claimants alleged in April 2023 that Mr Butcher was “guilty of conscious and deliberate dishonesty in the evidence which he gave and/or failed to give in the Manchester proceedings” and knew “more generally that [Mr Fradgley] was knowingly doing something dishonest but joined in with him to take away [MB Farm] and everything on it.”[33]In support of those bold propositions, they pleaded out detailed facts concerning Mr Butcher’s role as best they could, with the documents they then had. They appear to have rather jumped to the conclusion that Mr Butcher must have been in league with Mr Fradgley, including the latter’s fraudulent designs. By the time of the trial, the claimants had evidently appreciated that they could not sustain that contention. The claimants’ own evidence, elicited in cross-examination, was that Mr Fradgley was plausible and Mr Butcher might well have trusted him as the Lindsays did.[34]I conclude that the claimants should not have alleged in April 2023 that Mr Butcher was “guilty of conscious and deliberate dishonesty” in the way the case was originally pleaded. On the other hand, the failed summary judgment or strike out application was, strangely, based on the contention that the claimants had not alleged fraud against Mr Butcher, an argument he mistakenly believed would help him run a limitation defence. There was, therefore, some ambiguity and confusion about the claimants’ case on Mr Butcher’s role and the nature of his wrongdoing. The torts alleged against him in the Manchester proceedings (conversion and trespass) do not require fraud or bad faith.[35]Following the notice to admit facts, the claimants rowed back somewhat from asserting that Mr Butcher had acted fraudulently, in concert with Mr Fradgley. They contended instead in their amended particulars of claim that they would at the retrial say Mr Butcher defended the Manchester proceedings on a defence he and Mr Fradgley knew was untrue. This looks like a belated attempt to take the sting out of the fraud or dishonesty allegations made in the initial pleading. But they did not resile in the amended pleading from the proposition that Mr Butcher knew of Mr Fradgley’s fraud.[36]I have considered whether I should adjourn the issue of costs of this action, to be determined by the judge, sitting in this action after the conclusion of the retrial of the Manchester proceedings. That judge could be better placed than I to weigh the justice of the competing arguments. But on reflection, I think it unlikely that further documents will be disclosed so long after the events. It is therefore unlikely that the claimants will prove at the retrial that Mr Butcher was complicit in Mr Fradgley’s deceptions.[37]The position is, therefore, quite complex and nuanced. I have concluded that I should decide the issue now myself. I think the right order to make is to award the claimants their costs, on the standard basis, subject to a reduction of one quarter (25 per cent) by reason of the claimants’ conduct, to take account of the fact that Mr Butcher needed to defend himself against the fraud allegation originally pleaded against him, at least up to November 2023 when he himself asserted that he was not being accused of fraud. Even after his application to get rid of the case failed, there remained some ambiguity in the claimants’ position. Costs Orders from the Manchester Proceedings[38]The claimants seek repayment of the sums paid on account to Outlook and Mr Butcher respectively, namely £31,000 in the case of Outlook and £24,000 in the case of Mr Butcher. These sums were actually paid over. I do not accept that there is any basis for Outlook and Mr Butcher to be jointly and severally liable for the sum of those amounts, £55,000. The order of HHJ Bird was that £31,000 was to be paid to Outlook and £24,000 to Mr Butcher. That is not an order creating joint and several liability.[39]I accept that I should order repayment of sums paid by the claimants in respect of costs of the Manchester proceedings: see Takhar v. Gracefield Developments Ltd [2020] Costs LR 1851, per Mr Steven Gasztowicz, sitting as a deputy High Court judge, at [16]. Mr Bankes-Jones submits that this decision is not in point because the return of costs was ordered against the fraudulent party. I do not think that makes any difference. The judgment has been set aside against Mr Butcher. The order for the return of costs paid to him simply restores the status quo ante the Manchester proceedings.[40]I will order Outlook to return the £31,000 paid to it and Mr Butcher to return the £24,000 paid to him, within 28 days. Both amounts should in principle be subject to interest from the date of payment, which I am told was 31 October 2014. However, like Mr Gasztowicz in Takhar (cit. sup.) at [33], I am not clear what power is relied on, nor the amount and rate of interest that should be awarded. The claimants seek 8 per cent per annum. I will give the parties liberty to apply to a Master of the Kings’ Bench Division on this point, if agreement cannot be reached.[41]I will also set aside the assessment of Outlook’s costs in the sum of £162,919.82, following the Manchester proceedings. Those costs are therefore no longer recoverable from the claimants by Outlook. It is not suggested that any of that amount was paid to Outlook, other than (if not included in the assessed sum) the £31,000 I have mentioned. Costs of the Manchester Proceedings[42]The claimants pleaded for in this action, and now claim, an order that Outlook and Mr Butcher should pay the claimants’ costs of the Manchester proceedings. The deputy judge made such an order in Takhar, they point out. They rely on the reasoning at [96]. However, that was an order made against the fraudulent party. The position is different here, Mr Bankes-Jones points out. The only fraudulent party is Outlook.[43]I would in principle be prepared to make an order that Outlook pay the claimants’ costs of the Manchester proceedings. However, such an order would be unlikely to have any practical impact because Outlook is in liquidation. Moreover, I do not know whether it may turn out to be appropriate, following a retrial, to make some different costs order in the Manchester proceedings.[44]I am therefore not willing to make any order now as to the costs of the Manchester proceedings. I will order that those costs shall be costs in the retrial. I reject the contention of Mr Butcher that he should have a Bullock order in his favour, that the claimant pay his costs of the Manchester proceedings and that Outlook should pay the claimants’ costs of those proceedings. Mr Butcher unsuccessfully resisted the setting aside of the Manchester judgment, as already explained. Payment on Account of Costs[45]I have considered the claimants’ arguments about a payment on account of the costs of these proceedings. I have already stated that the claimants’ costs should be on the standard basis. I do not accept that they should be on the indemnity basis. Mr Butcher was placed in a difficult position in this action and though his response to it was not successful it was a difficult case for him. Costs on the standard basis should be assessed if not agreed and subject to a 25 per cent reduction, for reasons given above.[46]The figures are set out at paragraphs 9a-d of the claimants’ written skeleton argument on consequential matters. As for the approved budgeted incurred costs of £116,722, after reducing that amount by 25 per cent to £87,541.50, I am prepared to order payment now of 90 per cent of the reduced amount, i.e. 90 per cent of £87,541.50, which by my reckoning is £78,787.35.[47]As for the approved budgeted estimated costs (in the approved budget of 10 July 2024, appended to Mr Bacon’s written skeleton), they are £159,950. There has already been at least one interim assessed costs order in the claimants’ favour and I am not sure there is no inadvertent double counting. I am in no position to assess costs accurately and I am only prepared to award 60 per cent of the £159,950, after reducing that amount by 25 per cent to £119,962.50. By my reckoning, 60 per cent of that amount is £71,977.50.[48]In his skeleton, Mr Bacon claims smaller sums arising from the late defence of laches and in respect of post-judgment submissions. These are not in a schedule but are of the order of £20,000 plus VAT. I am wary of ordering any payment on account in respect of the late amended pleading and post-judgment matters. There is no schedule and such matters are sometimes included in brief fees. The amounts involved are relatively small and would have to be subject to a 25 per cent reduction. I make no order in that regard.[49]The total payment on account is, therefore, £78,787.35, plus £71,977.50, which comes to £150,764.85. I will order Mr Butcher to pay that amount as a payment on account of the costs of this action, within 56 days. Permission to Appeal[50]Mr Butcher seeks permission to appeal on two grounds: first, that the decision in my main judgment raises a point of law of general public importance; and second, that I was wrong to impute any blame on the part of Mr Butcher when deciding to grant relief against him under the equitable jurisdiction, if it exists. The claimants oppose the grant of permission to appeal on both grounds. There are no draft grounds of appeal, but the grounds are explained in Mr Bankes-Jones’ skeleton on consequential matters.[51]As to the first ground, I accept that my decision that the equitable jurisdiction to set aside a judgment procured by fraud extends to setting it aside as against a non-fraudulent party, is not covered by previous authority and is an extension of, or incremental development in the law and principles of equity. I do not accept the submission of the claimants that this issue does not merit the attention of the Court of Appeal or that the appeal would have no real prospect of success.[52]I would add that Mr Butcher’s “point of law of general public importance” is formulated by Mr Bankes-Jones as “whether in the context of an action to set aside a judgment procured by fraud, an innocent and honest party can be held liable for the dishonest acts of another”. I do not like that formulation; it sounds like a form of vicarious liability which is no part of my decision. The issue is how far the equitable jurisdiction extends, as explained in my main judgment. I hope the issue will be framed in that manner in any appeal. On that basis, I grant permission to appeal on the first ground.[53]The second ground on which permission to appeal is sought is expressed as “the suggestion of some culpability on the part of Mr Butcher despite him equally being the victim of a fraud”. It is said that he did not benefit from Mr Fradgley’s fraud, though I have decided that he did. It is further said in the skeleton argument that “the basis for ordering a retrial” against Mr Butcher “would appear … to be predicated on the erroneous conclusion that Mr Butcher ignored legal advice”.[54]Mr Bankes-Jones submits that Mr Butcher did not disregard legal advice because the advice was to obtain a court order prior to entry only “were the Lindsays to actively resist his taking possession, which they did not”. For the claimants, Mr Bacon submits that there is no arguable error of law or principle and that the factual basis for deciding to exercise the equitable jurisdiction to set aside the judgment as against Mr Butcher is unimpeachable. In particular, Mr Butcher did benefit from Mr Fradgley’s fraud, because it led to the claims in tort against Mr Butcher being dismissed summarily.[55]I do not think this ground has a real prospect of success and I do not grant permission for it. It is true that the relevant email from Ms Hacking, referred to at [43] and [44] of the main judgment, states that “if the Lindsays take sufficient steps which prevent you from entering the premises, then a court order will need to be obtained”. But the same email later states that if they do allow access and “are willing to give a written form of consent, then please telephone me and I will let you have some wording”.[56]I do not think that the main judgment at [43] misunderstands or misrepresents the thrust of the legal advice. I do not read the email as the solicitor giving a green light to a surreptitious entry by stealth, without consent, followed by forcibly barring re-entry except to collect personal possessions, which is approximately what happened. Furthermore, the claimants are right to point out that there was no acquiescence on the part of the Lindsays. Mr Butcher’s note records that two of the Lindsays told Mr Butcher’s team to “get off his land” and that the police were called.[57]The same note records that they called Mr Fradgley a “thief”, disputed Mr Butcher’s right to be appointed as a receiver and said they regarded the lease document relating to the cattle to be invalid. Mr Butcher’s note made at the time indicates that he was acting on the proposition that “possession is nine tenths of the law”. I think that was contrary to the spirit of Ms Hacking’s legal advice and that this point is relevant to exercise of the equitable jurisdiction as against Mr Butcher, if it exists.[58]In view of the timing of this judgment, I will give Mr Butcher until 2pm on 23 December 2025 to file his notice and grounds of appeal on the first ground and any application for permission to advance the second ground. He has been aware of the outcome since being sent the draft main judgment on 19 November 2025 and was told by email on 26 November that I was minded to grant permission to appeal on the equitable jurisdiction point and to require the appeal to be filed at the Court of Appeal within the usual 21 days from final judgment, which would be 17 December 2025. Directions for Retrial and Stay Pending Appeal[59]The claimant seeks expedition of any appeal, if permission to appeal is granted. I am sympathetic to that request. The Lindsays’ road to justice has been long and hard. But I do not know what impact, if any, ordering expedition would have. I am not privy to the state of the lists in the Court of Appeal and do not know the relative urgency of this case compared to other pending appeals. I can therefore do no more than express here the hope that the appeal will be heard as swiftly as possible.[60]I am not willing to grant a stay of the retrial pending the hearing of Mr Butcher’s intended appeal. The case is of considerable antiquity already, the relevant events going back to quite early this century. The right to a retrial as against Outlook, for what it is worth, would not be challenged in any appeal. Subject to any contrary direction from the Court of Appeal, I think the procedural fairness balance currently lies in allowing the claimants to get on with obtaining directions for the retrial. Disposal[61]For those reasons, I set aside the judgment of HHJ Bird against Outlook and Mr Butcher. I order a retrial. Directions for the retrial should be sought from the Business and Property Court (Chancery Division) at the Manchester Civil Justice Centre, in accordance with the main judgment, this judgment and my order. I have provided my order to the parties. It accompanies and reflects the decisions in this judgment.[62]My order includes a recital recording the claimants’ undertaking given during the trial not to seek any relief or bring any further proceeding against Beattie, the third defendant in the Manchester proceedings. I do not set aside the judgment as against Beattie, nor will I disturb the costs orders made in so far as they affect Beattie. The claimants accept this position, having not sought to serve Beattie with the present proceedings.[63]I will not be available to sit again in this case should any further consequential matters arise from this supplemental judgment and my order. If any such matters arise (for example, correction of any arithmetical error under the slip rule, or the rate of interest on returned costs as per the reasoning above), they should be raised by way of an application to a Master of the King’s Bench Division.

Cited in 1 later judgment