Fisher Jones Greenwood v Allen [2013] EWHC 262 (QB)

Case No HQ10X04057

[2013] EWHC 262 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice

Date Thursday, 24th January 2013

Before

HIS HONOUR JUDGE SIMON BROWN QC

(Sitting as a Judge of the High Court)

Between

\Claimant

FISHER JONES GREENWOODClaimant

PAMELA TRACEY ALLENDefendant

FISHER JONES GREENWOOD Claimant

PAMELA TRACEY ALLEN Defendant

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MISS H. EVANS (instructed by Kennedys Law LLP) appeared for Claimant.

THE DEFENDANT appeared In Person on Day One only. for in person

J U D G M E N T

JUDGE SIMON BROWN QC:

[1]This is a Part 8 claim made by Fisher Jones Greenwood ("FJG") against Pamela Tracey Allen. These proceedings have been tortuous, although as a Part 8 claim they ought not to have been. The claimants are represented by Messrs. Kennedys and by counsel. Miss Allen had the benefit originally of legal expenses insurance, but throughout these proceedings is a self-represented litigant.

[2]The matter was ordered for the Part 8 trial to be heard and a very helpful detailed skeleton argument was provided by counsel for the claimants, and I am grateful to Miss Evans for that comprehensive document; it is more than a skeleton. The defendant has acted throughout in these proceedings on her own behalf and she has doggedly contested the issue on the Part 8.

[3]What are these Part 8 proceedings about? They are really a simple issue as to whether or not a concluded agreement was made between Messrs. Kennedys acting on behalf of FJG, and solicitors Greene & Greene, who were then acting on behalf of Miss Allen. This agreement to compromise the action allegedly took place on 23rd July 2010. As far as the evidence is concerned in this claim there is a witness statement from Mr. Howard, who has given evidence about the substance of the matter. There is no evidence which has been served by Miss Allen, despite the opportunities for her to do so. She has, however, provided various skeleton arguments which have been signed by her and which the court therefore does take into account.

[4]Miss Allen attended this hearing on the first day and appeared to be fully on top of the case and had all the files (which are still in court) before her and seemed to have a mastery of her case. She did not appear to be under any pressure or exhibiting any signs of stress or particular mental illness, although it has to be said that she was very talkative and argumentative when she did attend. However, she then resolved to send in a medical certificate from a GP saying she was mentally unfit to attend the hearing any further and has not therefore appeared either yesterday or today but has been in contact with the court by sending various faxes of supplementary skeleton arguments, and also by being in contact with a court Associate on the telephone yesterday for over an hour about this matter. I have, of course, taken everything that she has had to say into account so far as this matter is concerned, and I have also made sure that counsel for the claimants has had sight of all the documents that she has sent in and has been able to make submissions on her behalf. Furthermore, because of the difficulties of running this particular case in her partial absence and in the way that she has chosen to conduct her case, I have asked counsel for the claimants to put, as far as she could understand, the arguments which Miss Allen would have put had she been here. I am aware that Miss Allen is antagonistic towards the lawyers who are acting for the claimants, but I am satisfied that counsel for the claimants has done everything quite properly to bring to the court's attention every argument that could possibly be made against her own case. With that background I need to review this particular case and come to a judgment upon it.

[5]The background is tortuous as I say, and there were numerous procedural disputes. It arises out of a claim which relates to events in March 2002. The claim was concerning the chance to purchase a barn in St. Osyth in Essex. Miss Allen's case was that she intended to develop the barn and sell it on for a profit. That was the substance of the claim. She issued the claim sometime later against her conveyancing solicitors, FJG. Those proceedings were issued near the limitation period expiry date on 14th March 2008, and so the underlying events are now more than 10 years ago. In the course of that action various unless orders were imposed on Miss Allen relating to disclosure and information about her substantial loss of profits claim, and the result was that on 7th July 2010 a substantial amount of her claim was struck out leaving a balance that her own barrister, Mr. Semken, described as "uneconomical to fight."

[6]Miss Allen then made allegations against two firms of solicitors, Messrs. Tilbrook's and Greene & Greene, relating to her claim being struck out. She also makes various allegations against FJG. On 7th July counsel for FJG, who is currently counsel in this particular claim, rose to seek the court's permission to withdraw a Part 36 offer which had been made to Miss Allen less than 21 days previously. The court adjourned and during the course of the adjournment Miss Allen's solicitors, Greene & Greene, purported to accept the offer. This led to a further dispute as to whether or not the Part 36 offer could be accepted or withdrawn and at that stage Miss Allen was telling the court that she wanted to accept the offer, which was then in the sum of £50,000 rather than try to reopen the orders, which had earlier been made by Eady J on 21st May and 7th July 2010, and proceed to trial on the whole claim. At that stage no allegations of any wrongdoing, deceit or the like were made against Messrs. Kennedys or counsel for FJG.

[7]However, matters then proceeded and the Part 36 issue came before the court on 21st July. Arguments were made that the offer should be permitted to be withdrawn given the stark change in circumstances between the size of Miss Allen's claim when the offer was made and the size of the claim when FJG sought to withdraw the offer. Reference was made to authorities and in particular Flynn v Scougall

[2004] 1 WLR 2069

as supporting FJG's position. At that stage it was all finely balanced, but behind the scenes there were negotiations which were conducted by Greene & Greene, who were acting for Miss Allen, and Kennedys, who were acting for FJG, to settle the professional negligence proceedings. It was FJG's case in those negotiations that Miss Allen was in a weak position and that she must therefore have known it, and she was facing a real risk of substantial costs awards against her if she did not settle the professional negligence proceedings without delay. What then happened was following the hearing on 21st July, but before any Judgment was handed down by Eady J in respect of the Part 36 issue, both Greene & Greene and Kennedys contact Eady J in writing on 29th July 2010 to inform him that a settlement had been reached (and I underline the words "had been reached") between the parties.

[8]The purpose of this Judgment is to look to see whether or not an authorised agreement had been reached between Miss Allen and FJG undertaken by Greene & Greene and Kennedys on behalf of the parties. There are essentially two issues, namely: was there a concluded agreement, which it is alleged was on 23rd July 2010? Was that an agreement which binds Miss Allen through the actions of her then solicitors who remained on the record until a date after it? Those are the circumstances and what I have to look to, and to put aside all the irrelevant matters which have been brought before the court.

[9]It is necessary for me to go through in a little detail some of the exchange of emails. The problem here is that the negotiations, of course, took place between Messrs. Kennedys and Greene & Greene. What, of course, the court should have are documents which went between Greene & Greene and Miss Allen. There has been a partial disclosure of that by Miss Allen, and so I have to piece together as best I can the chronology in this case through the email trail; mercifully, it is not too long.

[10]The evidence I had comes from Mr. Howard, whose evidence I accept; it has not been challenged. Paragraph 19 of his statement reads:

"By an email of 22nd July 2010 Mr. Batty replied to my email. I refer to Mr. Batty's email in the documentation. He stated as follows: 'Miss Allen's offer of £40,000 was put forward on the understanding that the payment on account of costs already made of £8,431.25 had not been taken into account and thus was needed to offset from the total sum of £92,294.35 in FJG's draft schedule of costs. It was understood that this schedule of costs was not complete and further fees would be added to it in due course'."

He said that he was awaiting instructions about the offer and on 22nd July he spoke to Mr. Batty on the telephone. "During the course of that call Mr. Batty informed me he had taken further instructions from Miss Allen, and DAS [the expense insurers] and he was in a position to make an offer of £45,000 in full and final settlement of FJG's claim for costs and the professional negligence claim." Mr. Howard says that he expressed disappointment at the figures in view of the indication that had earlier been made that on 21st July 2010 that Miss Allen might be prepared to agree £47,500. "Mr. Batty stated there had been a bit of a struggle to obtain instructions from Miss Allen and/or DAS. Mr. Batty stated that he could not be certain what the split would be between Miss Allen and DAS, DAS would require sight of all invoices before Mr. Batty could be certain what sums they would pay. As a consequence Mr. Batty indicated that any offer would be on the basis that payment would be made within 28 days insofar as the sums came from DAS and within 40 days insofar as the sums came from Miss Allen personally. Mr. Batty represented that Miss Allen had lost the certificates for the shares she intended to sell and needed to procure replacements before she could sell them." So it is apparent from that that Mr. Batty was taking instructions from Miss Allen to be able to say those matters. "Later that day I spoke to Michael Batty by telephone" and he exhibits the note. "In this conversation I said that FJG would be willing to accept £47,500 in full and final settlement net of any remaining claim his client may have that was not struck out on 7th July 2010." And then the critical matter is this, having got to agreement upon full and final settlement and the sum of £47,500 on 21st July 2010 he spoke to Ms. Boyle of Greene & Greene on the telephone. This conversation, he says, lies at the heart of it. The note of the conversation is exhibited which I have had to scrutinise with great care.

[11]The note is a Kennedys' attendance note where Mr. Howard was engaged for 12 minutes on the telephone on an incoming call from Olivia Boyle from Greene & Greene. "Olivia calling in Michael Batty's absence on holiday", and the critical sentence is this:

"Olivia confirming that her client will accept our offer of £47,500. Note: our client had never made this offer but indicated it would be willing to accept that sum if it was offered. Olivia explained that Mr. Batty wished us to be aware of the terms of that offer as soon as possible."

Mr. Howard inquired what additional terms would be included in any settlement agreement. Mr. Howard said:

"We had previously discussed any settlement being on a non-admission of liability basis. Olivia said that had not been agreed, but that she did not consider that to be a problem with the client."

Mr. Howard then raises the issue of a confidentiality condition, although appreciated that the settlement needed to be disclosed to Tilbrook's. "Olivia suggested this would not be possible and that her client would not be agreeable to any confidentiality agreement." Mr. Howard said he would consider the terms of a settlement agreement next week. Looking to the settlement terms, which are important, Mr. Howard was informed that DAS would be contributing approximately £30,000, which would be payable within 28 days, the delay being due to evaluating and calculating the amount of the insurance cover left available to Miss Allen. The balance of approximately £17,500 would come from Miss Allen, and would be payable in 42 days due to the loss of her share certificates and the requirement that the money came from the sale of shares. That is what is referred to in para. 24 of Mr. Howard's witness evidence. It is important that he, himself, was party to all these negotiations. I do not have any evidence from Miss Boyle and, of course, Miss Allen has not made any comments or given evidence on what she did or did not instruct Miss Boyle at this particular time, but she has subsequently made unsubstantiated contradictory assertion that she was either subject to pressure or that she did not give her authority. I reject both as subsequent creative reconstruction of the true position at the time. All the contemporaneous evidence indicates that she was not under any undue pressure and that Miss Boyle had her authority. Mr. Howard says this in his statement:

"I can confirm that we had reached an oral agreement and its validity did not depend on being reduced to writing."

[12]Mr. Howard says that 11.51 on 27th July he emailed Miss Boyle "to confirm the agreement we had previously reached on 23rd July". Again, he says:

"This is a crucial document."

It says:

"Heads of Terms I refer to our telephone conversation on Friday and write to confirm the content of that discussion. Your client will pay £47,500 in settlement of her claim against Fisher Jones Greenwood, including interests and costs, and Fisher Jones Greenwood's claim for costs, including interest relating to the action, to Kennedys Law LLP on behalf of Fisher Jones Greenwood. This settlement includes any liability for any previous costs award that had been made against either party save for those awards that have already been made by Miss Allen amounting to £8,431.25. Payment from your client's side will come from her legal expenses' insurers and your client personally. We have agreed that the funds from the insurers will be paid within 28 days from Friday, and the balance will be paid within 42 days from 23rd July. At this stage you have stated it is impossible to determine with precision what sums will come from each party. I therefore propose that the Tomlin order/consent order filed at the court will simply record that the total payment of £47,500 is payable within 42 days if Greene & Greene undertake to forward any sums received from Miss Allen's insurers within 28 days. This settlement will be in full and final settlement of the action listed in the Royal Courts of Justice and identified under claim number HQ09X04030 and this action will be dismissed with liberty to apply. As discussed on Friday Fisher Jones Greenwood require the order to be on a no admission of liability and you have indicated that your client will not agree to a confidentiality condition. I am producing a short Tomlin/consent order for you and your client's consideration."

The construction of that document makes plain that an agreement had already been made and this was recording that agreement. It was also anticipating that the consent order would be in those terms for the purposes of an order at the court.

[13]What then occurred was that on the next day Miss Boyle telephoned Mr. Howard, and I have here the attendance note recording what was said. Again 12 minutes were taken on this call. "Olivia confirmed that her supervising partner was not in the office until later today and that in the circumstances she was not in a position to agree to the Heads of Terms or the proposed Tomlin/consent order. Olivia did, however, confirm that she received both. She then went on to explain that following the discussion with MJH on Friday she spoke to the Royal Courts of Justice and managed to speak directly with Eady J to inform him that settlement parameters had been agreed ..." I emphasise the word "had". "... between the parties and he should therefore not be in any rush to finalise the Judgment following the 21st July hearing." There were then some discussions about how the moneys would come from each of the respective parties, DAS and Miss Allen.

[14]Indeed, the letters which go to the court indicate that the settlement had been agreed. That remained the position. The subsequent emails between Greene & Greene and Kennedys, and with the court indicate that agreement had been reached. There was one in particular which is to the clerk to Eady J on 29th or 30th July from Kennedys:

"We act for the defendant in the above action. We write to inform the court that agreement has been reached between the parties to settle the claim subject to signature on a consent order."

[15]There is an attendance note on 29th July of Mr. Howard attending upon Olivia Boyle from Greene & Greene. He said that Olivia, referring to Mr. Howard's email, explained she did not understand how we can continue to ask for agreement to the letter to Eady J when her client can no longer agree to the Heads of Terms. "It was likely that agreement would be reached from her client, which she suggested would be received today." and then it refers to some minor changes.

[16]On 29th July a letter comes from Greene & Greene to Kennedys which says:

"Thank you for your letter of 28th July 2010. We await our client's instructions in order to confirm the Heads of Terms proposed by you and Mr. Howard. In the interim we would suggest that both parties provide the court with written confirmation that agreement has been reached between the parties to settle the claim."

So the email traffic and telephone conversations are such as to support the contentions which are made by Mr. Howard in his factual statement that an agreement had been concluded on 23rd July.

[17]On 6th August 2010 Mr. Howard spoke with Miss Boyle again, and there is a note of the conversation on the file. He asked Miss Boyle what the position was with regards to the Heads of Terms:

"following our agreement in principle to settle the claim"

. Miss Boyle said:

"There may be a discrepancy between the understanding of Pamela Allen and the agreement entered into by Greene & Greene on her behalf two weeks ago."

So this indicates that Greene & Greene had entered into the agreement as Mr. Howard says. It appears that Miss Boyle was not suggesting that no agreement had been reached, and Mr. Howard's note expressly records her as saying that:

"Olivia said that she will stand by what was said before and her representations to the Judge on the same day on 23rd July."

[18]On 26th August 2010 Mr. Howard emailed Mr. Batty about Greene & Greene's assertion that they were seeking to make contact with Ms. Allen. Mr. Howard's email stated:

"What is not clear to us is why you would need to obtain instructions on the settlement that has been agreed."

Greene & Greene did not demur. On 3rd September Mr. Howard chased Mr. Batty again when he said there was some anxiety about the agreement bearing in mind the first tranche of money was due on that day, which indicates an agreement had been made. He said that Kennedys had relied on the verbal representations made on 23rd July and Greene & Greene's subsequent contact to the court but was becoming concerned that he may have inadvertently misled the court by stating the settlement had been agreed. But at no stage did Mr. Batty suggest that the court had been misled or that Mr. Howard had been mistaken. The matters then went on for another week when Miss Allen withdrew her instructions from Greene & Greene.

[19]So the situation under the Part 8 claim is quite simply this, that Greene & Greene, acting on behalf of Miss Allen with her actual or apparent authority had agreed that Miss Allen would pay the sum of £47,500 in full and final settlement of the professional negligence claim against it and the costs of the claim in addition to the £8,431.25 already paid, and that such sums would be paid within 42 days of July 23rd (that being the date of the agreement) insofar as they came from Miss Allen, and 28 days insofar as they came from DAS.

[20]Miss Allen has raised a whole host of objections but they really come down to whether or not there was an agreement, which was sufficiently certain and complete on 23rd July. What is the relevance of references to the agreement being in principle, and the importance of the Tomlin consent order. There are also issues which she appears to raise about the authority of Greene & Greene to enter this agreement on her behalf if it was the case. Again, since she is not here, I think it behoves me to go through each of these matters.

[21]The first issue is: was the agreement sufficiently certain and complete? Here, as I have indicated, it is quite clear that the agreement was that £47,500 would be paid by particular dates which are from the date of the agreement, which is 23rd July. Those terms are quite clear. I have been taken to some law on the issue as to where there are some other matters which remain to be settled by further negotiation, and it is right that I should look at that particular piece of law. The issue of whether or not the agreement has to be complete was raised relatively recently in the Supreme Court in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH Company KG (UK Production)

[2010] UKSC 14

. It is sufficient, I believe, to take the headnote. The issue, as I say, was one of whether or not there was a binding contract between the parties and it was held in that particular instance that:

"The question of whether there was a binding contract between the parties and if so upon what terms required consideration of what was communicated between the parties by words or conduct and whether it led objectively in accordance with the reasonable expectations of honest sensible businessmen to a conclusion that the parties had intended to create legal relations and had agreed all the terms which they regarded, or the law required, as essential for the formation of legally binding relations."

In this particular instance the terms were that the action would be compromised on payment of a particular sum by particular dates. In my judgment looking objectively at the correspondence and upon the evidence there was a binding contract with sufficient certainty as to terms on that particular date. So as a matter of law and fact I find that that defence is one which is unsustainable.

[22]There are references to the agreement being in principle, and also that there was a proposed Tomlin order, and this a reference in the letter of 29th July 2010 "subject to the Tomlin order." Here again, what is submitted on behalf of the claimants is that, looking at this objectively, it was envisaged between the parties that the agreement would be formalised in a consent order. However, they submit that this formality was not a pre-requisite of the agreement being binding, and this turns upon construing the importance placed on the Tomlin or consent order by the parties who negotiated the agreement. This passage from Von Hatzfeldt- Wildenberg & Anor. v Alexander

[1912] 1 Ch 284

at 289 is apposite. It is referred to in Chitty at para. 2-17:

". it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored."

Looking at this in this particular case it is apparent that it is the latter which applies here. There was a binding contact which anticipated a formal document in writing subsequently. In this regard the evidence which is there in Mr. Howard's witness statement is that the key discussion took place on 23rd July, and there is no challenge to that, nor, indeed, could there be. The validity of the agreement did not depend on it being reduced to writing. The note that I have seen does not suggest that a written agreement was required to give effect to the settlement. Further, Greene & Greene conducted themselves on the basis that it was appropriate to ask the court not to hand down Judgment before a document was executed on 23 rd July and they did not contest the contention later in the letter of Kennedys of 28th July that agreement has been reached, and I emphasise the words "has been". Looking at it in terms, the payment dates all generate from 23rd July, which is strong evidence that the date of the agreement was 23rd July.

[23]The next point that is raised, which we can glean from these skeleton arguments which have been produced by Miss Allen, is that she said she had not personally agreed the settlement and this is referred to in one of her letters. This is a situation where, at the material time, she was acting with solicitors, and it did not require her personal engagement. Looking at the limited file notes and correspondence that I have of communications between Miss Allen and her solicitors it appears as though she was giving instructions at the material times, otherwise her solicitors would not have been able to make the communications they did with Messrs. Kennedys. It may be that she was giving limited instructions or maybe that there were difficulties because there was another anticipated paying party, namely her legal expense insurers, and it may be that Greene & Greene were having difficulty and taking those instructions of both Miss Allen and themselves. But that is nothing to the point, as far as Kennedys were concerned the agreement was made between parties who had authority to so act.

[24]In letters of 20th September 2010 and 30th November 2010 Miss Allen takes a point that it was her understanding that a legal contract has to be signed by the party before legal action can be taken for non-compliance. This argument is misconceived as a matter of law. This may be apposite in terms of dispositions as far as land is concerned, under the Law of Property (Miscellaneous Provisions) Act, but not as far as the settlement of an action is concerned - this can be done verbally or it can be, as in this case, reduced into writing by electronic means. Miss Allen also says at one point that she was not aware that her solicitors had contacted the court to stop proceedings - this is the direct contact to Eady J - and she refers to this in her letter of 20 th September. Again, this is another bad point that Miss Allen makes, because Greene & Greene had ostensible authority to act on her behalf, so those matters are neither here nor there.

[25]Another point Miss Allen seems to make is that Greene & Greene did not have authority or she did not agree to settle, is that the person who did the negotiation, Miss Boyle, was not sufficiently authorised. She refers to somebody being a "tea lady" or "receptionist", but the plain fact of the matter is that Miss Boyle was a solicitor and had authority to act on her behalf. So that point is another bad one that is made.

[26]The next point that is made is that Greene & Greene put pressure on Miss Allen to agree to the settlement. Again, this is really not to the point as far as Messrs. Kennedys and Greene & Greene are concerned. But, in any event, the documentation that she has disclosed, and that I have seen, does not support that. There is no evidence to support her allegation that Greene & Greene pressurised her into making any settlement, so that must also fail.

[27]Miss Allen also makes a point, I believe, that Greene & Greene disagreed with Kennedys' versions of events in regards to the settlement. As far as all this is concerned, we do have the benefit of seeing the pleadings which are in the action which regrettably is taking place between Greene & Greene and Miss Allen. We can see from the pleadings in that action that in the defence and counterclaim of Miss Allen, which is very cogently drafted and is signed by her with a statement of truth, and I take it that she has drafted this herself, para. 12.15 there is an allegation of:

" 12.15 Failing by negotiating with other side in so doing agreeing with the other side not to pursue an appeal of strike-out and the defendant should not only forfeit the other side's Part 36 offer of £50,000 but the defendant should also make a large settlement to the other side evidenced in Tomlin order of £47,500. 12.16 Failing the defendant by legally advising in so doing exerting extreme pressure on the defendant to accept the court decision of 7 July 2010, accept the defendant has lost her Part 36 offer of £40,000, accept must pay other side £47,500 and costs."

It then says:

"12.18 Kennedys has served a Part 8 claim against the defendant for non-payment of the £47,500 Tomlin order as a direct result of the claimant's professional negligence, even though the defendant has not agreed or signed the Tomlin order to pay £47,500 to Kennedys, the defendant holds the claimant responsible for payment of the new Part 8 claim against her and costs if ordered by the court to make the payment."

Looking at that, that appears to be, on the face of it, some form of an admission that an agreement was entered into on her behalf by Greene & Greene with Messrs. Kennedys. But the response to this, by the reply and defence to counterclaim, which is drafted by counsel back in 2012 with Mr. Batty's signature on it as believing it to be true, so this is the best evidence that we have of what went on between Miss Allen and her solicitors on this point. In response it says:

"12.15 The negotiations which the claimant entered into with Kennedys were authorised by the defendant herein. The allegation of pressure being exerted on the defendant is firmly rejected, no such pressure was exerted or attempted. The claimant and counsel gave frank and realistic advice like the prospects of success for the defendant herein in the FJG claim as well as advice about the best terms of settlement. The claimant had so acted from the outset of its instruction by the defendant (see the attendance note of 24th June 2010). The claimant was duty bound to give such dispassionate advice and the defendant more than capable of making her own decision in the light of it."

It then deals seriatim with 12.18, which I have previously read out, about the agreement. It says:

"This is misconceived. The defendant authorised the claimant to agree such settlement with Kennedys for FJG on her behalf. She did so in a telephone call to Mr. Batty at approximately 17.30 hours on 23.7.10."

It appears from these pleadings, which have been signed by her and by Mr. Batty on the other side, that there is support for the claimants' contention in this claim that there was an agreement which was made about 17.30 hours on 23rd July 2010, an agreement which subsequently was to be reduced into writing, but the terms of the agreement had become certain and agreed as at that particular time. Those are the substance of the matters.

[28]Miss Allen has raised all sorts of minor issues about procedure which are really neither here nor there and I will not deal with those. She also produced some documents which she did ask to be taken into account and which we did insert into the court file. These are some documents which are between Mr. Batty of Greene& Greene, and Mr. Coombes of DAS - somehow she has come into possession of these, where Mr. Batty - despite what I have just said in the pleadings - said "No formal court order has been agreed. A draft has been awaiting Miss Allen's approval for several weeks." That is in response to a question from DAS:

"Were the terms of settlement formally agreed. The last email I received stated that terms had not been agreed."

What that is referring to is the question of the consent order, or the formal Tomlin order, hence the reference to "formal court order". It does not mean that no agreement has been reached. That deals with that final point.

[29]In my judgment this is a valid Part 8 claim, and notwithstanding everything that Miss Allen has put before the court by way of documentation - and there is voluminous documentation - in my judgment there is no defence to this claim and there will be Judgment accordingly. L A T E R

JUDGE SIMON BROWN QC:

[30]In my judgment this is a case where Miss Allen's conduct of the litigation has been deplorable, even giving allowance for the fact that she has been self-represented for obvious reasons. Looking at her pleadings in the other action against Greene & Greene it is apparent that she knows quite a lot about how to conduct litigation and, indeed, has taken a number of points about the Rules. She has not engaged in the Part 8 proceedings in accordance with its simple rules, and has failed to serve any evidence either any relevant documentary evidence or statement evidence when there was a clear statement about the simple case by Mr. Howard. Instead she has bombarded the court with lengthy and random faxes of arguments. Yet, notwithstanding an overwhelming and simple case against her she has not acted within the Rules by any shape or form in trying to engage in litigation and help the court with the process of the case in accordance with the overriding objective.

[31]Miss Allen has also bordered on contempt of court. She has made the whole litigation process extremely unpleasant and almost impossible by making wild accusations against the integrity of the lawyers acting on the other side and also a court associate, by constantly seeking unmeritorious adjournments, by sending in dubious medical certificates of unfitness from a GP when a psychiatrist pronounced her fit and able and by avoiding coming to court, preferring to communicate by fax and through an associate on phone over the whole of a mid day adjournment, all of which have been tolerated. The important point is that when it comes to detailed assessment of costs is that I have no doubt that the costs of Messrs. Kennedys in dealing with this relatively simple litigation have been grossly exacerbated by the deplorable conduct of Miss Allen on the other side. It means that in instances like this Messrs. Kennedys and Counsel have had to work even harder and longer at their clients’ expense to be able to put forward what they understand to be the other side's case in order to help the court to come to a just and fair decision on the evidence. It is Miss Allen's conduct which has exacerbated the costs and is to be deplored. Therefore indemnity costs is the correct order in principle in my judgment. It means that upon the detailed assessment the burden be upon her to show that such costs as have been incurred by Messrs. Kennedys are unreasonable: proportionality ought not in this case to be an issue as it would be on a standard costs basis of assessment. ____________