Stapleton, R (on the application of) v Revenue & Customs Prosecution Office [2008] EWHC 1968 (QB)

Case No TLQ/08/0369[2008] EWHC 1968 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Friday, 25th July 2008
Strand
London WC2A 2LL
B e f o r e:
SIR THOMAS MORISON
Between
THE QUEEN ON THE APPLICATION OF STAPLETONClaimantv
Between
REVENUE & CUSTOMS PROSECUTION OFFICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Ramsden (instructed by Devonshires) appeared for ClaimantMr D Barnard and Mr J Law (instructed by Revenue & Customs Prosecutions Office) appeared for Defendant
J U D G M E N T
[1]DEPUTY HIGH COURT JUDGE: In this judgment I have used rounded figures up or down because the exact amounts are not relevant. I will refer to Vincent Stapleton, Nicola Stapleton's father, as "the Defendant" and the Revenue & Customs Prosecutions Office as "RCPO" and to Nicola Stapleton by her first name. There are three properties which feature largely in this case. I shall refer to them simply as Wickhams, Silver Lane and Wharncliffe.[2]The defendant, along with others, pleaded guilty on 24th September 2001 to conspiracy to cheat "by the evasion of value added tax in respect of computer components" and was sentenced, after an appeal, to 4 years' imprisonment. The nature of the fraud is described as a "missing trader intra-community fraud" (also known as a VAT carousel fraud). It was carried on by the defendant, along with a number of associates, of whom one was Raymond May.[3]The indictment specified the dates of the fraud from 1st January 1999 to 30th September 2000. The defendant was arrested on 5th September 2000. On 7th September 2000, 2 days later, Collins J made a restraining order against him under the Criminal Justice Act, over property which the prosecution alleged was his legally or beneficially. The property specifically included Wharncliffe. On 28th February 2002 Nicola made an application to exclude Wharncliffe from the restraint, as she claimed it belonged to her and not to her father, whom, she said, had no interest in it.[4]For a number of reasons, these proceedings have taken a long time to come before the court. There have been various appeals in the criminal proceedings. There were contested confiscation proceedings and appeals. In due course a confiscation order was made (after an appeal) against the defendant, in the sum of £1.6 million. Fresh criminal proceedings were instituted by the prosecution against him and others, alleging that he was engaged in money laundering of funds, including the moneys paid to him out of the proceeds of the ostensible sale of Wharncliffe to his daughter.[5]The criminal proceedings against the defendant were stayed after an abuse of process argument. On 10th October 2007, on a submission of no case to answer at the end of the prosecution case against the alleged co-conspirators, not guilty verdicts were entered. One co-conspirator had pleaded guilty, but after the events described he was allowed to withdraw his plea and, on the prosecution offering no evidence, he too was acquitted.[6]Although some time in evidence was spent in ascertaining how these proceedings in Chelmsford were finally disposed of, in my judgment nothing that did or did not occur there affects the outcome of Nicola's case.[7]The prosecuting authorities seek to enforce the confiscation order against the Wharncliffe property. Nicola says that that property belongs to her and is therefore not part of her father's realisable assets. In one sense, therefore, this is the trial of Ms Stapleton's application made in February 2002, but as Mr Barnard for RCPO helpfully submitted, this case is analogous to the position where a third party intervenes to dispute enforcement proceedings brought pursuant to a confiscation order.[8]At the outset, there was some discussion as to who should give evidence first. RCPO accepted that the burden was on them to prove that Ms Stapleton did not own Wharncliffe and that it was still beneficially owned by the defendant. In those circumstances, it was thought appropriate that they should call their evidence first. RCPO's case is that the sale of Wharncliffe by the defendant to Nicola in the summer of 2000 was "a sham in which Vincent Stapleton transferred his own moneys (deposited in Nicola's bank account) to himself, pretending that Nicola was buying his property". That is a reference to paragraph 7 of the written opening.[9]It is a necessary part of the case against Nicola that the money she used to purchase the Wharncliffe property was in reality her father's own money. The evidence shows that the money used by Nicola to make the purchase came from funds she obtained when a previous property, Silver Lane, was sold. RCPO say that this property was in reality owned by the defendant, although it was nominally in the name of his wife and Nicola. Therefore, the proceeds of sale belonged to the defendant and not to his wife and daughter. Therefore, when Nicola bought Wharncliffe from her father using the proceeds of sale from Silver Lane, she was returning to him his own money.[10]I start with some undisputed facts. The Stapleton family comprised the defendant; his wife Kathleen; Nicola, whose date of birth I think is 9th August 1974; and a son, also called Vincent. Between May 1991 and June 1994, the family lived in Wickhams. Nicola is a professional actor and has been on the stage since she was 6 years old. In her mid-teens she became a star as a result of a role she took in a TV soap EastEnders. Wickhams was registered in the name of the defendant's brother Peter, although he had his own home which he lived in with his own family. This property appears to have been paid for by the defendant, at a price of £225,000, with the aid of a mortgage. The defendant also discharged the obligations to the building society.[11]Wickhams was sold on 27th June 1994. There were two chargees: the building society and a Mrs Wopling. After their interests were discharged, from the total sale price of just under £400,000, the defendant received £182,000. It is common ground that although the title to Wickhams was in the brother's name, he held the property on trust for the defendant, who was the beneficial owner of it. We do not know why the property was put into Peter's name.[12]It was Nicola's evidence that between 1993 and 1994 the relationship between her mother and father deteriorated to such an extent that they decided to separate. She described this event as "painful". She witnessed the breakdown of the relationship. The fact that there was to be a formal separation is confirmed by a document which the solicitors drew up. The intention was that Nicola's mother should receive the bulk of the net proceeds of sale of Wickhams and some £150,000 was paid into her account at the Allied Irish Bank.[13]By June 1994 Nicola's acting career was flourishing. Her gross income for her accounting year ending on 31st August 1993 was £68,000-odd, and roughly the same the following year. Having obtained a role in EastEnders, she was something of a celebrity. Apart from the soap, she was acting in films, other TV plays, pantomimes and doing the odd voiceover for commercials. She has had her own bank account since 1991. Her business was managed by theatrical agents and her accounts were audited by Mr Burke, an accountant. All her accounts and tax returns relevant to the issues in this case have been disclosed, although there was a delay in disclosing relevant pages in her bank statements, a failure for which she is not to be held personally responsible.[14]The Revenue have recently taken an unusual interest in her tax affairs, but there is no suggestion that she has failed to disclose relevant information to the tax authorities, or that she has not paid her taxes when due.[15]It is Nicola's case that during the summer of 1994 she and her mother resolved to buy a house together, which they would jointly own, and they would house themselves and the younger brother:
"Me and my mum were quite happy to set up on our own."
She says they acquired a property which was on sale after a repossession order had been made against the previous owners and was going cheap. Silver Lane is an extensive property with a swimming pool. They bought the house for £440,000. It is common ground that £251,000 was paid in cash, cheque or other negotiable instrument, and the balance of £195,000 was advanced by the Britannia Building Society on an interest-only basis, secured by a charge over the property.[16]Assuming Nicola had a half interest in the house with a mortgage of £100,000 in respect of her interest alone, that was well within her financial grasp, being just 1.5 times her gross annual income.[17]In respect of the cash element, it is common ground that nominally the moneys were provided by the mother in the sum of £156,000 from her AIB bank account, the defendant in the sum of £45,000 and by Nicola in the sum of £50,000 from her bank account. Nicola's contribution was made in two tranches: £40,000 by telegraphic transfer and £10,000 by way of banker's draft. This property was eventually sold in April 2000.[18]Between September 1994 and April 2000, there were mortgage repayments of some £76,500. Of those repayments, £26,850 were by way of cheques drawn on Kathleen's account with AIB, and nearly £50,000 was paid in cash. It is Nicola's case that she contributed a half share of the outgoings on a monthly basis, paying her mother in cash. Her mother would then go down to the building society and pay the cash into their mortgage interest account. During this period Nicola spent a large part of her time away from home:
"I was living pretty much in Liverpool, living with my boyfriend on and off."
[19]A cousin, Gerald, also lived in the property and paid his way. In the latter part of the period 1998/1999 the mother became seriously ill and had to undergo a serious surgical operation. The defendant came back to the home to look after her and, according to Nicola, their differences seemed to be resolved. In due course a near neighbour called at the property, expressing an interest in buying it, and eventually the property was sold to them for some £780,000. This amount gave the net proceeds of sale after discharging the mortgage and the other usual expenses, of £582,000. Half of that sum, £291,000, was paid into the mother's AIB account and the other half into Nicola's bank account. The documents show that the defendant played a role in the sale of the property, but that the agents looked at the mother and Nicola as their formal clients. In my judgment, there was nothing odd or suspicious about the way the sale was processed, and nothing in these documents to establish that Nicola was 'fronting' for the defendant.[20]Nicola said that at that time her father and mother were intending to go and live in Spain, and they went to Spain, presumably to seek some kind of permanent accommodation there. She told the court that she rented a small mews property, a tenancy agreement is dated 29th March 2000, and was living there. She wanted more of a home for herself and felt attracted to a property which the defendant owned and which she had visited from time to time, namely the Wharncliffe property. She spoke to her father about it, since she knew he was intending to get rid of it and "I liked the property". The property "was in fact very important, both in terms of my emotional roots and in an effort to keep my feet firmly on the ground with the extraordinary recognition that my part had enjoyed". That is an extract from her first witness statement at paragraph 5.[21]Since May 1999 the defendant had been listed as the registered proprietor of Wharncliffe.[22]The case for RCPO is as follows: none of the purchase price ostensibly advanced by Nicola to acquire Silver Lane came from her own money. None of the mortgage repayments were made by Nicola, but were in fact made either by her mother, as her husband's front, or by him. On the financial evidence, Nicola could not have paid mortgage outlays. Her case that she gave her mother the cash to do so is incredible and should be disregarded. The acquisition of Silver Lane, and subsequently of Wharncliffe, were sham transactions in which Nicola was a knowing participant. As it was put by the investigating officer Mr Fatherley:
"It is the Crown's contention that the transfer of [Wharncliffe] to Ms Stapleton from the defendant for £175,000 was a method of disguise by the defendant in moving part of the sale proceeds of [Silver Lane] back to him in a manner which he considered would never be detected or traced. It is alleged that the defendant retains an interest in [Wharncliffe], notwithstanding the transfer to his daughter."
[23]In support of their case RCPO rely on a number of matters: 1. The defendant was a sophisticated fraudster and was competent and sufficiently knowledgeable to put his property out of the reach of the authorities. Thus, the first house, Wickhams, was put in the name of his brother, Peter, although it is clear that the defendant paid for it and lived there with his family. Even though his name did not appear on the Silver Lane title deeds, there is evidence that he played a role in its sale. This general picture is also supported by a recorded conversation between the defendant and the co-conspirator May, which at least suggests that moneys paid out could be "pulled back out":
"You see what's happening? Although I paid for it, what we're doing now is she is going to buy it off me, so next month June/July, no matter when, she's going to buy it off me and transfer the money to my bank. So they can never touch it. You know what I'm saying?"
This conversation was recorded on 4th April 2000, the date when Silver Lane was sold, and suggests that the sale of Wharncliffe to Nicola was to be made in June or July "no matter when" for the purpose of concealing funds "so they can never touch it". 2. Most of the deposit moneys for Silver Lane were advanced by the defendant, whether directly or indirectly, through the medium of his wife. I can infer this both because of the inherent probabilities (as Kathleen makes no similar claim to Nicola) and the fact that she produced false proof of her income to the Britannia Building Society. I should add that at this stage it is not suggested that Nicola was aware of this. Without his underlying support, counsel submits that it is inconceivable that Nicola and her mother would undertake to buy such an extensive and expensive property with a substantial mortgage. 3. The repayment of the mortgage was curious to say the least. Nicola had her own bank account, yet she never made a payment of interest out of it. Her description of paying cash to her mother, who took it down to the Britannia Building Society is implausible and should be rejected. In any event, her bank statements are not consistent with the withdrawal of £500 on a regular basis. The total amount drawn out in cash would not have been sufficient to pay that amount each month, and her earnings from her profession were diminishing and could not sustain such a heavy obligation to the building society. 4. The funds which the defendant obtained from the sale of Wharncliffe were immediately used by the defendant to further his illegal business. I should infer that the transaction was simply a mechanism whereby the defendant's own money was being repatriated to him. 5. I can and should draw adverse inferences against Nicola by reason of her failure to call as a witness her father (the defendant), her mother and her uncle, all of whom could have confirmed her case. There are curious documents relating to the sale of Wharncliffe and its acquisition by the defendant. There are documents which appear to show that Nicola had instructed lawyers to buy the property well before she actually did. She says that she knew nothing about those solicitors, yet she has failed to call them to advance her case and explain how they would be writing as though she were their client when she was not. Further there is an extraordinary document signed by the then registered proprietor of Wharncliffe and dated May 1999, that he would agree to the transfer "to Mr Stapleton or a member of his family for nil consideration". This document, it is said, casts further light on the defendant's approach to transferring assets, as he decides, without there being any substance to the transaction.[24]It is against that background and those submissions that I must give my decision. I start with what I consider to be the key to the whole case, namely the answer to the question "Whose money was invested in Silver Lane?" or, more precisely, "Did Nicola advance any of her own moneys?" The evidence on this must be teased out of the bank statements. These show sums of £5,000 and £19,500 were transferred out of her account, and that later a sum of £25,000 was received into the account. It was the receipt of that £25,000 that enabled Nicola to advance £50,000 for the purchase of Silver Lane. Leaving aside this tranche of £25,000, RCPO are forced to accept that they have no evidence to contradict Nicola's evidence that the other half came from her earnings as an actress. In other words, the documentary evidence shows that the source of the funds for half of her investment in Silver Lane was legitimate and has nothing to do with the defendant. The other half is more dubious and depends essentially on the impression that Nicola made as a witness during the trial.[25]She is an accomplished actress, used to learning a script and assuming a role. I have to be on my guard to keep that in mind as I judge what she said. Her case on this point is that she made a loan to her uncle of £24,500 in two parts (the £5,000 and the £19,500), which he repaid in the total sum of £25,000. She says that she did not inquire what her uncle wanted the money for and he never told her. She said it was not her business to know. She was relatively young at the time, below 18, and her mother was concerned about the arrangement and suggested that they attend a solicitor's office for the loan to be recorded.[26]She said that the solicitor's office had been flooded and the only extant version of the document must have been destroyed at that time. Mr Fatherley, who has carried out diligent and extensive inquiries on behalf of the RCPO, interviewed the solicitor and can confirm that they did have a flood as a result of which documents were lost. He did not suggest in his evidence that the solicitors had no knowledge of the loan document, but, on the other hand, there is no evidence that he ever asked about this particular document.[27]Is it credible that neither her mother nor her uncle told her what the loan was for, or that neither she nor her mother asked what it was for? Further, does her failure to call her uncle as a witness to corroborate her case suggest that I should draw adverse inferences about her evidence on this point? In my judgment, there is nothing so inherently improbable in the young girl not asking what the loan was all about that I should reject her evidence on this ground alone.[28]There is some evidence that her uncle was in financial difficulties at this time (see the references to a bankruptcy notice having been served on him). She is close to her uncle, having spent some time in his house, which was something of a refuge for her. It would have been of assistance to the court had her uncle been called as a witness, but given the nature of the case and the serious criminality of the defendant and others, it might be thought unreasonable to expect her to involve her uncle in these court proceedings, brought in the name of RCPO, which no doubt would have led to questions about his involvement in Wickhams.[29]If I had concluded that Nicola had not contributed towards the purchase price out of her own money, and I had to decide this case on the basis of this tranche of £25,000 alone, I might well have felt unable to accept what she said about this being a repayment of a loan from her uncle. Rather, I might have been inclined to accept that the defendant had channelled money into the property through his wife and daughter. But I do accept that she put her own money in, and on this basis I can see no reason to reject her evidence as to extent of her advance.[30]If she was putting in some of her own money, then it becomes difficult to understand why the defendant should channel money through her when he was making an overt contribution already. Accordingly, I do accept that she invested £50,000 of her own money in Silver Lane. It follows, therefore, that in my judgment it is not possible to conclude that when Silver Lane was sold all the proceeds of sale belonged to the defendant.[31]If, as I have concluded, it was always intended that Nicola should have an interest in Silver Lane, as evidenced by her contribution out of her own money to what I have called 'the deposit', then what interest did she have? In a family arrangement of this sort, it seems to me that if Nicola were to have any interest it would be a half share, as she said in evidence, and as reflected in the Land Register and mortgage. She and her mother were setting up a new home together. There is no evidence to suggest that Nicola was to have a lesser share than one-half. Her case is that it was expressly agreed that they would share the property equally. It is not RCPO's case that she had an interest which was less than half, they simply assert that she had no real interest at all, since she was acting as a front for her father.[32]Further, I do not believe that at the time Silver Lane was acquired, it was the family's intention that the defendant should be the owner through his family. At that time his relationship with his wife was unsteady, they were not planning to set up this home together and did not do so until after the mother became ill, well after the house had been purchased. This finding is not contingent upon the repayments being made equally by Nicola and her mother. On the evidence, it seems to me that Mr Burke is probably right that Nicola had enough money to pay her half, about £500 a month towards the building society, although it has to be said that towards the end of the period of occupation of Silver Lane her earnings diminished and the mortgage repayments would have become a greater burden on her.[33]Cash was taken down to the building society as their records show. Thus, however unusual it is for mortgage payments to be made in cash, that is unquestionably what happened. Did Nicola pay part of those contributions? It seems to me probable that she did so when she was living at home. She gave good circumstantial evidence as to how the moneys were calculated, taking into account their common expenses. She withdrew substantial sums during the period from cashpoint machines, but these withdrawals were not sufficient, of themselves, to fund the payment of £500 per month. Nicola also said that when she went to a shoot, or something similar, she would be reimbursed her expenses in cash so that, she said, she was relatively 'cash rich'. Those are my words.[34]I also accept that cousin Andrew contributed towards the mortgage. I do not accept that she paid £500 per month each month, and do not believe that her repayments were regularly made when she was living with her boyfriend in Liverpool, but in principle I see no reason to doubt that when she was there she paid her own half share.[35]It is not so much the repayments that show the half share, rather it is the entries in the register, supported by the account of how she and her mother agreed to set up home together in the light of the separation of her parents: see Oxley v Hiscock [2004] EWCA Civ 546. The arrangements or understandings that the parties made or reached is "the first and fundamental question": see paragraph 23. On her case, which I accept, there was an agreement, arrangement or understanding for half shares. That is credible, having regard to her success as an actress; she had a good income and very good prospects when the purchase was made. In these circumstances, it is clear that on the sale of the property, which had greatly increased in value, Nicola was entitled to a half share in the net proceeds of sale.[36]I shall now deal with the submission that I should draw adverse inferences against Nicola because she failed to call her uncle, her father or her mother to support her case. It seems to me there are two distinct situations which must be distinguished: a failure by a party to give evidence and a failure by a party to call a supporting witness.[37]The case of British Railways Board v Herrington [1972] AC 877 is an extreme example of the first type. British Rail called no evidence at all, presumably for the very good reason that they wished to test, in the House of Lords, ultimately, whether, assuming negligence, they owed any duty to a trespassing child. In the Privy Council appeal in Donovan Crawford and Others v Financial Institutions Services Limited [2005] UKPC 40, the controlling mind of the companies, Mr Crawford, also did not give evidence. In such circumstances, the court will say that there is no evidence to contradict what has been said by the other party, and the court may draw all reasonable inferences as to what the facts are which the defendant has chosen to withhold.[38]In the second situation, the 'principles' which apply are conveniently summarised by Mann J in Fulham Leisure Holdings Limited v Nicholson Graham & Jones (unreported) at paragraphs 71-72, and adopted by Briggs J at paragraph 30 of Polarpark Enterprises Inc v Rupert Allason [2007] EWHC 22 (Ch):
"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not whollysatisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."
[39]I am instinctively opposed to the notion that evidential matters, and the weight to be given to evidence, should be hedged around by 'principles'. Whether it is appropriate to draw adverse inferences from a failure by a party to call a witness depends entirely, as I see it, on all the relevant circumstances in each case. Here the burden of proof to establish that Nicola was a front for her father rests upon RCPO. They have statutory powers to investigate events and those inquiries and investigations have been diligently pursued. If Nicola did not give credible evidence, then her case, without supporting evidence, would have been rejected; but if her evidence were credible, as it was on the issue of her contribution to the purchase of Silver Lane and the arrangements made as a family, then the failure to call corroborative evidence is not evidentially significant. It is only in those cases where her evidence is open to real doubt, as in the case of the source of the £25,000 referred to above, that a failure to call theuncle in that instance might be significant, but the failure to call the mother to agree with Nicola's credible account about the agreement or understanding that the property would be held equally does not weaken her case on that issue.[40]In relation to the mortgage repayments, evidence from the mother would have cast light on the matter and her absence has in part led me to reject Nicola's case that she always paid a monthly sum of £500, but the mother's absence does not lead me to reject Nicola's credible evidence that she paid some contributions in cash. It seems to me unfair to seek to draw any adverse inference from a failure to call the defendant, having regard to his obvious criminality. It seems most unlikely that any court would find his evidence about financial evidence involving his family credible. At the end of the day, and standing back and reviewing the evidence, I am not persuaded that I should draw any general adverse inference against Nicola.[41]I have weighed the evidence in the light of what further evidence might have been available. In my judgment, the conclusion that Nicola was entitled to a half share in Silver Lane is not affected by the size of her overall contribution to the purchase and maintenance of the mortgage. I do not find it incredible that she has become the beneficiary of a windfall due to the substantial increase in property values. At the time the understanding as to her half share was reached, Nicola's acting career was in a healthy state: she was a high earner with the prospect of more to come. I suspect it was in the parties' contemplation that Nicola would become an even more highly paid star, the property was suitable to her station in life at that time and, but for her mother's illness, the subsequent reappearance of her father and their desire to live abroad, they might well have remained in Silver Lane.[42]Whilst it is clear that estate agents took instructions from her father, and that he played a greater role in the negotiations than she did, there is evidence from that file that Nicola is noted as having half share, and she was recorded as a client of the firm. In my judgment, in accordance with the family arrangements made, Nicola became entitled to a half share of the proceeds of the sale of Silver Lane. That leaves the question of purchase of Wharncliffe.[43]As already indicated, there are suspicious circumstances surrounding this property. I see no reason to doubt Nicola's denial that she had instructed solicitors to act on her behalf about a year or so before she is registered as having acquired this property. I do not know what the previous correspondence is about. I am not prepared to infer from the absence of a witness from the solicitors concerned that she has something to hide. If there had been any doubt about her participation at that time, no doubt the RCPO would have resolved it using their investigatory powers. It seems probable to me that the defendant was attempting to manipulate things so that he could appear to dispose of the property in a way which suited him. That is consistent with the conversation picked up on the probe.[44]The context of this conversation was not apparent to me and I am not sure whether the defendant was "shooting a line" to his co-conspirator, talking big to show how he could manipulate things, or whether he was anticipating an arrest and was seeking to hide his assets and put them out of reach of the authorities. When provided with his transcript, Nicola said she confronted her father about it whilst he was in prison and that the only explanation he gave was that the people who he did not want to be able to get their hands on the money were the daughters of the vendor. In other words, I suppose he was telling her that he was concerned that because the property had been transferred to him for nil consideration, there might be somebody from the vendor's family who could come back at him. Nicola did not put forward her father's explanation as the truth; she was merely reporting what he said.[45]I can quite understand RCPO's concern about this transaction. What is anticipated from the probe conversation actually occurred, namely Nicola bought the property in the summer. On the other hand, there is undisputed evidence that the price she paid for it was the full market price. On my findings, the money she paid for it came out of her own pocket and not his. The house is registered in her name. The purchase price was made out of her money. She has been living there ever since 2000. The fact that her father then used the proceeds in a suspicious way does not alter the position. Nicola, as she said in evidence, is not concerned with her father's financial dealings, and she has never been accused of being involved in them.[46]I regard the idea that she is holding the property on trust for the defendant as fanciful. Whilst he may be able to manipulate his wife, there is no evidence that the defendant can or has manipulated his daughter in the same way. I assessed her as a generally honest and truthful witness who was straightforward in her replies and was entirely consistent in her evidence, never putting a foot wrong. Having warned myself that she might be a good and convincing actress who has told a pack of lies in a convincing manner, at the end of the day I reject that notion.[47]If Mr Barnard and his clients are right, she has been guilty of being involved in money laundering for her father and has perjured herself in affidavits and in the witness box. I am not prepared to reach that conclusion. There is no evidence of any substance to compel such a conclusion. Suspicion alone is not good enough. There must be some factual foundation for the inference that she is dishonest, and there is none. The most that can be said against her is that she had become embroiled, through no choice of her own, in one sense, in her father's affairs. No doubt she now regrets having bought a property previously owned by her father, albeit for its full market value. As she said, had somebody else bought it, she would not be standing where she was, giving evidence about events that took place 8 years ago. It follows, therefore, that I refuse the declaration sought by RCPO and discharge the restraint order over Wharncliffe. Formally, I shall invite RCPO to undertake to remove the restriction placed on its title, rather than making the order that they do so.[48]MR BARNARD: I will deal with that in a moment when I come to the question of permission to appeal. I think, first of all, we should deal with costs.[49]DEPUTY HIGH COURT JUDGE: Yes.[50]MR RAMSDEN: Mr Barnard is quite right that we should deal with costs. My Lord, on my Lord's findings that the claim to the declaration sought by RCPO was fanciful, and that there was no evidence of substance to support the allegations made against my client, which were of the most serious kind, I ask firstly that she be awarded her costs of these proceedings. My Lord will bear in mind that proceedings of this kind are virtually incapable of settlement by somebody in the Stapletons' position. Not only is she faced with allegations of the kind she was faced with, but in terms of a commercial compromise it is very difficult, for practical purposes, to do that. So she has been locked into litigation for 8 long years through no her fault of her own. That has cost her dearly. It has cost her dearly, not just financially, but in other ways too.[51]I go further and say this, that it would be appropriate in this case to consider whether those costs ought to be assessed on an indemnity basis rather than a standard basis. Can I refer my Lord to the White Book at volume 1, page 11.43. My Lord will see on the facing page the provision in part 44.4 dealing with basis of assessment. My Lord will see that costs may be assessed on standard or indemnity basis. If my Lord turns to 11.45, I invite my Lord's attention to the note at 44.43. What 44.43 reflects, and my Lord will be aware of, is the Court of Appeal's approach to the grant of indemnity costs.[52]Firstly, the Court of Appeal do not, and have refused consistently, to give guidance reflecting the fact that individual cases will throw up a myriad of circumstances where such costs are appropriate. But equally, my Lord, the old presumption that indemnity costs in some way had a stigma of criticism or disapproval attached to them is old-fashioned. All that is required, as is reflected in the case of Excelsior Commercial & Industrial Holdings, is that the circumstances of the case take it out or away from the norm.[53]Let me tell my Lord why we say the circumstances of this case are taken very firmly away from the norm. Firstly, Ms Stapleton, through no fault of her own, has been dragged into what has sadly been a high profile litigation involving an attack on her character in circumstances where her character and reputation are important to her livelihood, not just because she attracts media attention, but because, as an actress, her reputation and her good faith are important in the eyes of the public and those who might wish to retain her as an actress. She has faced the allegations and innuendo inherent in this case for 8 years without any opportunity, until now, of answering back in a public and decisive way.[54]The second reason we say this case is taken away from the norm relying upon unwritten but oft-followed convention in civil proceedings, where allegations of serious dishonesty are made and they fail at trial, the court will very often visit that failing with an order for indemnity costs. That convention, in this case, is reinforced by two matters. The first is that Ms Stapleton faced, right up until the opening of the trial, certain specific and very serious allegations of dishonesty, which were either conceded, necessarily, by RCPO, or fell decisively when RCPO's evidence was led. Most prominently with the building society application form, that was open to my Lord in public as something she was party to, and the allegation that she had contributed not a penny of her own money to the purchase of Silver Lane, something that ought, my Lord may think, to have been apparently wrong to RCPO, but was not for no better reason than that -- and having no doubt investigated diligently on previous occasions -- Mr Fatherley had not looked at the recent bank statements until his first night in the witness box. His explanation for that was simply that he had been under pressure of time.[55]That is unsatisfactory because the case was opened in public in circumstances of great sensitivity to Ms Stapleton on the basis that she was a liar and a fraudster, when an important part of the case against her was plainly factually wrong. In that regard, we do not accept any criticism in relation to the recent disclosure of those bank statements. My Lord should be aware there has been a vast amount of correspondence in relation to that. It is my client's position that she had disclosed those statements a long time ago through her previous solicitor, whose practice has been intervened in. It was a great inconvenience and expense to her to produce them again, she did produce them again but she remains unconvinced that in fact they were not disclosed by her previous solicitor, to whom she says she provided them.[56]In any event, it made not a jot of difference to RCPO, because when they did get them they did not look at them. When they did look at them, the only concession they made, which was a necessary one, was that the £25,000, which she made by way of a contribution to Silver Lane, was plainly her money. What it did not affect in any way was any of the other allegations of dishonestly which they chose to level at her.[57]As my Lord has rightly found, those were the most serious allegations, they were fanciful, they were not supported, in my Lord's words, by evidence of substance, and this is a case, we say, which is taken away from the norm and justifies an award of indemnity costs. My Lord, that is my application.[58]MR BARNARD: My Lord, I have, bearing in mind certain observations yesterday, rather anticipated your Lordship's judgment and therefore I have typed out some submissions on costs. Can I just hand them up?[59]DEPUTY HIGH COURT JUDGE: Yes, certainly.[60]MR RAMSDEN: (Handed). Thank you. Can I ask you -- I am sure you are very familiar with it -- to open the White Book at part 44, 44.3, which is page 119. I hope I have summarised correctly what is in there.[61]DEPUTY HIGH COURT JUDGE: Yes.[62]MR RAMSDEN: My Lord, in my submission the starting point must be the general rule that the unsuccessful party will pay the costs of the successful party, but as your Lordship well knows the rule goes on to say the court may make a different order. My Lord will know that since the introduction of the CPR the courts have been prepared to depart from the general rule. Indeed, it is spelt out in the rules that the court must have regard to all circumstances, including the conduct of the parties. My Lord, I am quoting 44.3. Instances of the matters which the court is to consider are given at 44.3.5.[63]My Lord, in the present case it has been clear, I would submit, from the absolute outset that the critical issue was the source of the funds for the deposit of the claimant on Silver Lane. The relevant sequence of events, which simply cannot be denied, is as follows: Mr Burke's witness statement was served as long ago as 1st August 2002, 8 years ago. That permitted the relevant bank statements in the 6 months up to the acquisition of the properties and then provided, interestingly, one statement which showed only the deposit moneys being paid out. He gave no explanation in his witness statement, or indeed in his evidence, for the omission of those critical documents, but he said he had the statements -- and your Lordship will recall the statements were sent to him -- so there would not have been the slightest difficulty in him supplying them.[64]My Lord, 15th September -- I have given you the references but I will not read you the correspondence again unless you want me to.[65]DEPUTY HIGH COURT JUDGE: No.[66]MR BARNARD: We asked for a full set of bank statements. On 19th October, her solicitors, not rejecting the request, refused to provide bank statements for the rest of the family. My submission, and it will remain my submission, (inaudible) that a critical issue in this case is the involvement of the other members of her family.[67]The letter of 14th December 2005, again we ask for bank statements. My Lord, on 22nd December 2005 a letter comes promising they will be supplied, and indeed they have had no difficulty in supplying them. On 6th January the documents still had not been supplied. It is said they are with counsel. On 14th June the question is not "Where are these papers? Oh, sadly you lost them in some flood" but that "Nicola has not given permission to disclose the papers".[68]DEPUTY HIGH COURT JUDGE: This is the solicitor talking, was it not?[69]MR BARNARD: I cannot imagine that he would say that without clear instructions from his client. It would be astounding if a solicitor, aware of his obligations to the court --[70]DEPUTY HIGH COURT JUDGE: When he said the papers were with counsel, was he telling the truth?[71]MR BARNARD: I thought when the solicitor says, "The papers are with counsel" -- I am sure that he was telling the truth. I cannot imagine a solicitor, in any circumstances, saying the papers are with counsel when they are not.[72]DEPUTY HIGH COURT JUDGE: My experience is different. I have seen cases where cases have been struck out for want of prosecution or whatever it is now called, where the solicitor said, "The papers are with counsel". It happens rather more frequently than it should.[73]MR BARNARD: When they were not?[74]DEPUTY HIGH COURT JUDGE: Yes.[75]MR BARNARD: Maybe I am being a bit naive, then.[76]DEPUTY HIGH COURT JUDGE: Yes.[77]MR BARNARD: If one comes to the second thing, I would submit that it is inconceivable that a solicitor, faced with these repeated requests for disclosure of critical documents, could possibly say that his client had not given permission, unless he had sought instructions from his client, and I ask you to find that as a fact.[78]H: the solicitor served the defence on the same day, your Lordship will know only 4 years out of time: see Stanley Burnton J's order. The Law Society intervened in the affairs of the solicitor. So I assume your Lordship would say to me, "Maybe one would also think a little bit about that".[79]DEPUTY HIGH COURT JUDGE: I know that she was dissatisfied with her solicitor. She said so in evidence.[80]MR BARNARD: She did. On 12th December 2007, RCPO wrote to the solicitors for the skeleton statements, which they properly describe in the correspondence as crucial documents. That they are crucial documents really cannot be gainsaid. On 11th January they write to the senior partner of the firm. On 18th March, and this, in my submission, is most serious, at a hearing before Black J, Mr Law, who sits beside me, raised the question that these important documents have not been disclosed. Far from accepting that, that is challenged. I will come to the consequence of that. The consequence, shortly, is that Black J, on that short application, could not possibly resolve the matter and made an order for standard disclosure. If she had known what we now know, in my submission it is inconceivable that the learned judge would not have made a peremptory order for disclosure.[81]The situation gets worse. On 22nd May, Nicola's solicitors served their list. On 29th May, we write for inspection and we are not given inspection. So we write again for inspection. Then they claim they have already served the items. Then, finally, accepting that it is not the position, on 2nd July, 3 weeks before this trial begins, the missing bank statements first appear in the hands of Customs. Let me say straightaway, this misconception that HM Customs, once proceedings have begun in this court, have the power to obtain, by production order, bank statements or any evidence of any sort, is completely wrong. The only way it can be done is in the normal process of application, such as Mr Law was making.[82]This has to be understood, that list revealed for the first time that on 11th July 1994 -- and this was not mentioned in your Lordship's judgment -- 1 week after the mortgage application and 6 weeks before completion, Nicola received into her account -- your Lordship mentioned in the judgment £25,000; your Lordship did not mention where it came from. It came from her father's solicitors. It also shows further unexplained payments into the account after the moneys had been transferred. The letter provided an explanation, saying this was a loan from Peter Stapleton. Those instructing me very properly wrote saying, "Let us have some evidence about this". On 11th July we asked for the original source. On 15th July they do not provide an explanation, saying, "Ask the question in cross-examination". On 22nd July, on the second day of the trial, we first hear that explanation. In my submission, this conduct can only be described as deliberate and inexcusable.[83]The director is charged by Parliament with enforcing the provisions of the Criminal Justice Act, and in particular enforcement of confiscation orders. He necessarily is always in a position where he will not know the full picture. As I have said, once proceedings are brought in this court, it is the orders of this court that will provide the information.[84]DEPUTY HIGH COURT JUDGE: He is like any other litigant.[85]MR BARNARD: Exactly.[86]DEPUTY HIGH COURT JUDGE: He has to take the risk that he is going to lose, or he may take the risk that he is going to win, and he takes the advice of distinguished counsel who tell him what the answers are.[87]MR BARNARD: If counsel and the director are in the position that the critical evidence is not revealed to them --[88]DEPUTY HIGH COURT JUDGE: Then they know whether they have a weighty case.[89]MR RAMSDEN: £25,000 coming from the father's solicitors 6 days after the mortgage application? What is the director to make of that? Is he to say, "I should give up the case now. This must be a hopeless case"?[90]DEPUTY HIGH COURT JUDGE: He might ask himself whether the other £25,000 had come from her uncle and, if so, whether it was fair or proper to maintain in opening, and in the case advanced, that none of this money was advanced right after the acquisition.[91]MR BARNARD: I do not mean this disrespectfully, but if we respectfully disagree with that.[92]DEPUTY HIGH COURT JUDGE: No, Mr Fatherley agreed with it. It was put to him. You have no reason to think this money came otherwise than from her own funds.[93]MR BARNARD: Assume that was right, at what time in this litigation were we in that position? That would be the question, in my submission, the court should ask itself. The answer would be: not earlier then 30th July 2008. What is the consequence of that when one looks at the Costs Rules and when one looks at conduct? So my submission is, on 5, I will not refer you to (inaudible) conduct, but you will be well aware that failure to comply with the schedule obligations can be added. In my submission this case is serious misconduct. I would submit that the correct order is this, I have set it out at 7. First of all, that Nicola should receive no costs from the date of the insertion of the misleading exhibit until the papers were delivered on 2nd July 2008. Alternatively, that she should be ordered to pay the costs incurred during the period when RCPO were attempting to prepare for trial and she was refusing to give permission for disclosure.[94]Thirdly, that so far as the hearing before Black J is concerned, she should pay the costs of that hearing on an indemnity basis because at once someone should have stood up and said, "What Mr Law is saying is completely correct". If that had happened, the learned judge would have advanced all the disclosure. So we would at least have had 6 months to consider these documents and research and consider whether we should be making applications back to this court for further orders, including orders for further information under part 18. Hardly possible last week.[95]Finally, in my submission she should have no costs for the preparation of this trial because she refused provide answers to the very elementary question of "Where does this money come from?" So your Lordship will see the way I put my application on costs. More than that, may I say that this question of costs raises a point of principle.[96]DEPUTY HIGH COURT JUDGE: Thank you.[97]MR RAMSDEN: My Lord, I approach my response in two ways. Firstly, and I make no criticism of Mr Barnard when I say I have only just seen this document, as your Lordship has, and in the very short time I have had to look at it I have to say that there are some concerns we have in relation to the fairness of what is set out in paragraphs 2(a)-(t), given there is, in the very short time I have had to look, plainly other correspondence which bears on this issue, which makes perfectly clear the position that Ms Stapleton is adopting. That was that you should make an application for specific disclosure if you think she has not given disclosure and she had. We believe she had given it to her previous solicitor, a firm intervened in, but a firm that she insists had got all these statements. That invitation, which was made repeatedly by my instructing solicitors, was never taken up by RCPO. They have procedures available to them.[98]We also do not accept the account of the hearing before Black J, and we certainly want to look at the attendance note for that. If my Lord is in any way attracted to this submission, we would want the opportunity to perhaps put something in writing to my Lord by reference to the wider correspondence before my Lord reaches a decision, but we say in fact that is not necessary for this reason: all of what Mr Barnard has said has not made a jot of difference to RCPO's approach to this litigation. It is quite right the director is charged with an onerous responsibility to conduct these cases, and that responsibility includes the responsibility to review whether and to what extent it is correct and proper to pursue certain allegations, and that is an obligation that exists right up until the end of the case. Nothing in RCPO's conduct would indicate to my Lord that it is prepared to give an inch in this case unless it absolutely has to do so, when, for example, Mr Fatherley quite properly made the concessions he did. In those circumstances, the notion which underpins Mr Barnard's submission, which is "things might have been different if you had given certain information" simply does not wash, and it ought not to wash with my Lord. We say this is a crystal clear case where indemnity costs are appropriate. I invite my Lord to make that order now, but if my Lord is in way uneasy about doing that now, we would like the opportunity to answer these points properly.[99]DEPUTY HIGH COURT JUDGE: My experience is that costs unusually generate more heat than any other issue in a case. The judge has a complete discretion on what to do. He is guided by principles set out in Part 44 and he is required to have regard to all the circumstances, including those specified in 44.3.4, which I do.[100]The real point that is made in this case on behalf of the losing party is that they should not have to pay the costs because there has been a failure to disclose bank statements for a particular period of time, a relevant period, possibly the relevant period.[101]I have already held in my judgment that it was a failure for which I did not think Nicola was to be held personally responsible. She had put the affairs in the hands of solicitors who eventually became the subject of investigation by the Law Society. Mr Barnard says that it is clear from all the history of this that there has been a deliberate attempt to prevent RCPO from having access to the relevant part of the bank statements. For their part, the Nicola's solicitors say that simply is not true. They believe that there had been disclosure of all the accounts on an earlier occasion. They believe that they had previously provided their former solicitors with the documents, and that they had understood from those solicitors that indeed the documents had been disclosed. That is the letter from her present solicitors dated 2nd July.[102]As has been pointed out, even when they receive these letters they are still not prepared to modify their case in relation to the £25,000, which plainly had come from her own funds; and they were not able to gainsay that in Mr Fatherley's evidence. Accordingly, I think Mr Barnard is making far too much of what he is saying, and I have no intention, in the exercise of my discretion, in depriving Nicola of any part of her costs.[103]The question that does arise, which is more difficult, is whether, in the exercise of my discretion, I should award her indemnity on the costs. Very serious allegations have been made against her. I have dealt with those as best I can in my judgment and have acquitted her of the fundamental fraud and dishonesty with which she has been accused during the course of these proceedings, both in the opening and in closing.[104]Where such allegations are made and rejected on the basis that there really was not sufficient evidence for them, then the court may well be minded to make an order for indemnity costs. However, if one looks at the picture overall, as I have already indicated, there are certain parts of this case which do not appear to me to be entirely straightforward, and are not easily explained. In those circumstances, I think the right order for me to make is that Nicola should have the costs of these proceedings, not on an indemnity basis but on a standard basis. The effect of that is simply to alter the burden of proof in the taxing procedure, where it will be for her to establish that the costs were reasonable as opposed to it being an obligation on RCPO to show that the costs were unreasonable. So she should have her costs of the action, to be taxed if not agreed.[105]MR RAMSDEN: My Lord, I am grateful for that. Before Mr Barnard deals with any other matter, he may wish to raise by way of application -- my Lord indicated at the conclusion of his judgment that an invitation would be made to RCPO to remove the restriction. Can I ask that that be confirmed in open court?[106]MR BARNARD: I am going to deal with it now.[107]MR RAMSDEN: Thank you very much.[108]MR BARNARD: My Lord, having generated a lot of heat on the question of costs, I hope I can now deal with something which is less controversial. This is a case where, having carefully considered the matter over yesterday, I think it is highly likely that my clients will wish to seek permission from a single Lord Justice to appeal. May I say that, importantly, not in any disrespectful sense but because this question of inferences and the inferences that should be drawn in CJA cases, where relevant persons are not present, accepting entirely your Lordship's résumé of the law, is something which is not important just in this case but may be of importance in many other cases. Without disrespect in any way, I think it is highly likely we intend to apply for permission. The problem is this, that we are at virtually the end of Trinity Term. Myself and Mr Law will be away in August.[109]DEPUTY HIGH COURT JUDGE: I think Mr Fatherley is more important than either of you at this stage, if I might say so.[110]MR BARNARD: Mr Fatherley is important but, as your Lordship knows, one now has to do skeleton arguments, grounds.[111]DEPUTY HIGH COURT JUDGE: First of all you have to ask me for permission to appeal. When I have dealt with that application, you will then have to consider whether you should go to the single judge.[112]MR BARNARD: With respect, no, my Lord, it has now changed.[113]DEPUTY HIGH COURT JUDGE: Has it?[114]MR BARNARD: The former rule, as your Lordship rightly says, is I would be standing up and saying --[115]DEPUTY HIGH COURT JUDGE: -- you have got it all wrong, you silly old fool.[116]MR BARNARD: I would never have put it like that.[117]DEPUTY HIGH COURT JUDGE: That effect.[118]MR BARNARD: So I shall be making a permission application to a single Lord Justice. All I really want is an extension of time, because I only have 21 days. I would want until 1st September.[119]DEPUTY HIGH COURT JUDGE: The procedure, you told me, is that you do not ask me for permission to appeal.[120]MR BARNARD: I can, but I do not have to. The rule was: you have to ask the judge first. If the judge refuses you, then apply to the single Lord Justice.[121]DEPUTY HIGH COURT JUDGE: In order to make it easier for you, I will tell you that I refuse permission to appeal, if you were asking for it --[122]MR BARNARD: Which I am not.[123]DEPUTY HIGH COURT JUDGE: -- so that if the single Lord Justice in the Court of Appeal says, "I would like to hear what the judge below said", at least you will be able to tell him. The reason why I refuse permission to appeal is because I regard this as a factual exercise and it depended on the credibility of witnesses, and I do not think it is an appropriate case for an appeal. That would be what I would say. Your junior has noted all that.[124]MR BARNARD: He has noted all that.[125]DEPUTY HIGH COURT JUDGE: Therefore, if the single Lord Justice is in the slightest bit interested in what the trial judge had to say on the question, that is what I have to say.[126]MR BARNARD: Yes.[127]DEPUTY HIGH COURT JUDGE: Therefore, if you are wrong about being able to go straight to the single judge -- I am not saying you are because I just simply do not know -- that is what I have to say.[128]MR BARNARD: Yes, but having said that --[129]DEPUTY HIGH COURT JUDGE: Yes, and indeed I still fill in these forms. I must say it has come as a surprise to me. (Speaks to the associate). Can I just say that we think you are not right, Mr Barnard, but I really do not want to get involved in this.[130]MR BARNARD: I am very grateful to the associate, but paragraph 52 makes it absolutely clear what the position is.[131]DEPUTY HIGH COURT JUDGE: How would you describe the nature of this hearing? I have to put in a description of it. Fun? Important? Nature of hearing, I suppose it is "application to discharge". Shall I put it as "application to discharge restraint"? That does it, does it not?[132]MR RAMSDEN: Yes, my Lord, that would be fair, and then we will have to deal with the charge as we can.[133]MR BARNARD: Can I continue with my application?[134]DEPUTY HIGH COURT JUDGE: Just hang on a moment. I am actually going down my course for the moment. If you had asked me for permission, I am going to refuse it.[135]MR BARNARD: Just before you do that, if this had been a case where I was applying to the judge for permission, I would certainly have asked you for time to put in written submissions because, as your Lordship well knows, in a case as complex as this you would be entitled to say to me, "I want to see the grounds upon which you say my judgment is wrong". I would want the chance to look in some detail at the judgment you have given. It deals with a very large number of facts, and I would want respectfully to point out those facts that I would respectfully say your Lordship has omitted, those points where I would submit your Lordship has not given the right weight to the evidence, or the lack of evidence and, importantly, I would want to deal with the question of inferences.[136]Please do not take that as being a summary of my application for permission, it is not, because what I would do in these circumstances is I would ask for permission to put in written submissions. But I do not need to.[137]DEPUTY HIGH COURT JUDGE: No. Well, I think that we are like ships that are not sailing towards one another but passing each other in the night: you think you do not need to ask me and I think you do. So I am telling you you cannot, and you are saying, "I do not care what you are saying".[138]MR BARNARD: That is true.[139]DEPUTY HIGH COURT JUDGE: You are saying, "Please do not tell me until I have asked you". It seems to me the easiest way of dealing with this is: I will now tell you what I have written down. Nature of trial: application to discharge restraint order. Result of hearing: application granted. Brief reason for decision to allow or refuse appeal:
"refused" is the box that has been ticked. "
A factual question depending on the credibility of witnesses" is what I have written.[140]MR BARNARD: I am so glad. I misheard you. It is the only occasion during the hearing when I would have taken umbrage. I thought you had said that my argument was fatuous when you are saying "factual".[141]DEPUTY HIGH COURT JUDGE: I see.[142]MR BARNARD: I do not invite you to add that to it. Very seriously, we would like time to put our papers in order. We have had the opportunity (inaudible) but it is the question that the period of 21 days, it is a long vacation, would give us --[143]DEPUTY HIGH COURT JUDGE: Do I have the power to extend time if your application is to the Court of Appeal?[144]MR BARNARD: We can make applications to the Court of Appeal, but I can also make an application to your Lordship. I would respectfully submit, in the circumstances of what is going to happen over the next few weeks, it is not going to hurt anyone if we extend time to 1st September. Or we could, I suppose, at our inconvenience, make other arrangements.[145]DEPUTY HIGH COURT JUDGE: I think, if I have power to do it, that sounds right, providing that in return you give an undertaking that if there is to be no appeal you will immediately discharge the caution.[146]MR BARNARD: I think that is absolutely fair. The authority for that is 52.4.1: the appellant's notice must be filed within 21 days after the date of the decision on appeal, unless the lower court directs a different time.[147]DEPUTY HIGH COURT JUDGE: Right. Do you have any objection to 1st September?[148]MR RAMSDEN: My Lord, so long as that does not cause prejudice to my client. As I understand it, the restraint order is discharged in relation to Wharncliffe.[149]MR BARNARD: I still have not dealt with that.[150]DEPUTY HIGH COURT JUDGE: I will say that should not take effect until after their appeal.[151]MR BARNARD: Exactly.[152]MR RAMSDEN: If they wish to get a stay on my Lord's judgment, they should go to the Court of Appeal. My Lord has refused permission on the clearest and correct basis that this is an entirely factual dispute, as it has turned out, and if they now wish to keep Ms Stapleton under the restriction she has been under for a full 8 years, they must take their chances in the Court of Appeal. It is not good enough to say, "We have holidays coming up". I am afraid counsel's convenience is never at the forefront of anyone's mind. We all have holidays in August, but to suggest to Ms Stapleton --[153]DEPUTY HIGH COURT JUDGE: What did you just say?[154]MR RAMSDEN: I said we all have holidays in August.[155]DEPUTY HIGH COURT JUDGE: Speak for yourself.[156]MR RAMSDEN: Sorry.[157]DEPUTY HIGH COURT JUDGE: I think Mr Fatherley would agree. The tradition is barristers go to their second homes in Tuscany while everybody else is actually working.[158]MR RAMSDEN: I have a short one in August. My Lord, the point is this, it is a serious point: the idea that Ms Stapleton should remain under this constraint, even for another month, after all these years, because it is inconvenient for RCPO to put their application in, or make an application for a stay to the Court of Appeal, is really unreasonable and unacceptable. Consistent with my Lord's refusal to grant permission, I think my Lord is entitled to say to RCPO, with the resources at its disposal, "Make your application to the Court of Appeal for a stay", if you can convince a single Lord Justice that this appeal has any legs at all. I do not think my Lord should do that.[159]MR BARNARD: That would make my application for a short extension untenable. What in fact happened, as your Lordship may know, in all these restraint cases where a property is restrained, is that if for any reason the person under restraint wants to sell the property that is -- I cannot think of any instance where it has not been agreed by the director. Their solicitor is simply giving undertakings where the restraint order will apply to the proceeds of any new property. I am only asking that that should happen until 1st September. The first question is: what would the inconvenience be to the party who has won? The second question would be: what is the inconvenience to the parties who lost and subsequently won in the Court of Appeal? The inconvenience to us, if we were to succeed in the Court of Appeal, this property was sold, our contentions were right anyway and the proceeds disappeared, would be very serious indeed.[160]DEPUTY HIGH COURT JUDGE: Yes, but if I do not give you a stay, you can go to the Court of Appeal on Monday morning and say, "Here is the judgment", or Tuesday morning, or Wednesday morning, unless you are in Tuscany, and possibly Thursday morning, and say to the Court of Appeal, "We want to appeal this judgment, here is a transcript of it and we would ask you to order a stay in the meanwhile" and the court will then look at it and say yes or no, as the case might be.[161]MR BARNARD: Yes, but the difficulty is the court will say(a) this is the end of term and(b) we want a full explanation of the grounds of appeal. So I am back in the same situation. I would not dare go to the Court of Appeal, who would know very little about the matter, whereas your Lordship knows all about it. Effectively it means yes, I suppose, if I spent all next week preparing all these papers I could do it. What is the inconvenience to Ms Stapleton in maintaining, on our undertaking that if she wishes to sell the property in the meantime --[162]DEPUTY HIGH COURT JUDGE: No, that is obviously not sensible. Let us take your own house for starters, if you cannot use the proceeds of sale of your own house, what is the point of selling it, you cannot buy anything?[163]MR BARNARD: No, in all these cases, if the restrained defendant or the third party says, "I want to sell", invariably, in my experience --[164]DEPUTY HIGH COURT JUDGE: They say, yes, fine, just hold all your proceeds of sale.[165]MR BARNARD: Or buy another house, but the restraint will simply attach to that until the court gives its decision. That invariably happens in the Administrative Court. I have never heard of a case where -- I am talking about the ordinary situation where a home, usually in the name of the defendant or wife, is restrained.[166]DEPUTY HIGH COURT JUDGE: Yes. So your application to me is to extend time --[167]MR BARNARD: To extend time and to say --[168]DEPUTY HIGH COURT JUDGE: -- and to grant a stay.[169]MR BARNARD: -- that the restraint is not to be removed until either the Court of Appeal refuses permission to appeal or makes further order, assuming it gives permission. Then it would consider the matter again.[170]MR RAMSDEN: My Lord, it really is, given my Lord's findings, and given the clarity of my Lord's findings, a matter upon which RCPO must convince the Court of Appeal. It would be quite wrong for my Lord to grant a stay in circumstances where my Lord has reached such a clear view. To say that it might be an onerous burden is neither here nor there. The RCPO have tremendous resources at their disposal. If it means working hard to get before the Court of Appeal in a coherent way next week, that is their burden. They brought this claim and lost.[171]DEPUTY HIGH COURT JUDGE: Presumably what I have said does not take effect until 14 days --[172]MR BARNARD: No, it takes effect immediately from your judgment.[173]MR RAMSDEN: The restriction would not be removed immediately.[174]DEPUTY HIGH COURT JUDGE: If I ordered money to be paid, that would not be payable until 14 days after the date of the order.[175]MR RAMSDEN: That would be. My Lord, the discharge of restraint order would take effect then, but the removal of the charge would take time. There is no doubt about that, because an application has to be made to the Land Registry for the charge to be removed. That would take, in my experience, about 10-14 days by the time one has corresponded and had confirmation it has been removed.[176]DEPUTY HIGH COURT JUDGE: I am faced with somebody who says, "I do not agree with your decision. I want to appeal this". So obviously the position must be held until the Court of Appeal have considered whether to grant a stay.[177]MR RAMSDEN: That rather depends on what my Lord thinks of their assertion that they disagree with my Lord's decision, because my Lord is entitled to take a view, as the judge at trial, having reached a clear view on the evidence that, whilst they may say that, it has absolutely no merit at all. On the other side of the fence, Ms Stapleton has had this restraint order and charge over her property for 8 long years. She has gone through this trial and she is entitled to walk from court today knowing that this has ended.[178]DEPUTY HIGH COURT JUDGE: With respect, she cannot do that until after they have been doing whatever they are going to do in the Court of Appeal, which is beyond --[179]MR RAMSDEN: My Lord, it is, and that is probably the point. If they want to take their chance before a single Lord Justice, they must put together a coherent enough case to convince that court that it should grant a stay. What Ms Stapleton is entitled to is to walk out of court today knowing she has won decisively at trial, and unless they can convince a different court to take a different view, then that is it. My Lord, that must be right.[180]DEPUTY HIGH COURT JUDGE: The normal period of time for refusal is 21 days.[181]MR RAMSDEN: Yes, it is.[182]DEPUTY HIGH COURT JUDGE: Time runs in August.[183]MR RAMSDEN: Yes, it does.[184]DEPUTY HIGH COURT JUDGE: In those circumstances, if I said that the restraint was to be lifted at the end of 21 days and they were to accept an undertaking that they will then apply to have the caution discharged, that way their position is preserved, they can go to the Court of Appeal; but if they do not go to the Court of Appeal and get permission to run an appeal, then at the end of 21 days that will be all over and done with.[185]MR RAMSDEN: My Lord, I will take brief instructions but I can see the pragmatism there. (Pause). My Lord, yes, my client is content with that.[186]DEPUTY HIGH COURT JUDGE: I am not going to extend time. I am going to say 21 days, but I am going to say that the restraint order is not to be lifted until the end of the 21-day period, subject to any further order by the Court of Appeal.[187]MR BARNARD: Yes, and Tuscany will be postponed by a week.[188]DEPUTY HIGH COURT JUDGE: Yes.[189]MR BARNARD: I wish it was. Thank you very much.[190]DEPUTY HIGH COURT JUDGE: It is a worryingly long time since this all started. I have been very careful not to say that anybody is at fault. In fact, I do not think anybody has been at fault, but the fact is it is a very long time, 8 years ago, since he was arrested, and 6 years since Nicola lodged her objection. I think we do need to move briskly to an end.[191]MR BARNARD: So the order will be: restraint discharged 21 days from today, unless the Court of Appeal in the meantime has either given permission or heard an application for a stay, because it will be an application for a stay.[192]DEPUTY HIGH COURT JUDGE: They will have to grant a stay.[193]MR BARNARD: Yes.[194]DEPUTY HIGH COURT JUDGE: They do not always grant a stay when they have granted permission to appeal.[195]MR RAMSDEN: No, of course not.[196]DEPUTY HIGH COURT JUDGE: I would be surprised if in a case like this they did not, but I cannot account for what they will do.[197]MR RAMSDEN: My Lord, in addition to that, so there is no misunderstanding, if there is no permission to appeal and stay, there is also an undertaking that the charge will also be removed.[198]MR BARNARD: Of course, it will definitely be --[199]DEPUTY HIGH COURT JUDGE: That undertaking is given?[200]MR BARNARD: Yes.[201]DEPUTY HIGH COURT JUDGE: Otherwise, I could make an order, but I would not (inaudible) make an order against a government department. If it tells me it is going to do it, I shall believe them.[202]MR RAMSDEN: My Lord, can I finish by thanking you, I think on behalf of everybody, for managing to provide judgment so quickly after the evidence, given the time of year. We are grateful for that.[203]DEPUTY HIGH COURT JUDGE: That is very nice, thank you very much. Thank you both very much for your help.

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