Monks v National Westminster Bank Plc

1 On the question of the appropriate basis on which to order the costs of the claim, Mr. Monks, the claimant who has succeeded on the claim, submits that it should be the indemnity basis. He makes a number of points. The first of point, upon which he places great emphasis, is by reference to the evidence of Mr. Milton, one of NatWest’s three witnesses, and the circumstances in which his evidence came to be prepared and put forward to the court. 2 For reasons that I have given in my substantive judgment, in particular at para.25, the preparation of the statement does not seem to me to be a matter which is worthy of censure by being marked in costs. The problem that arose was outside the remit of those responsible for assisting in the preparation of the evidence. It arose because Mr. Milton, when asked whether his statement was written in his own words, said that it was; but, when he was taken to the earlier witness statement of Ms. Stothard, the bank’s solicitor who had prepared a witness statement for an earlier interim hearing on instructions from a bank’s employee who had been dealing with Mr. Monks’ affairs and would have been the witness of fact instead of Mr Milton had she not been absent on sick leave, it became clear that Mr Milton’s answer was not true. Had Mr. Milton said at the outset that the words were not his own, that he had, as he said eventually, looked through a draft that had been prepared in advance and considered it and altered it so as to make himself “comfortable” with it, that line of cross-examination would not have needed to go any further. That is not a point which, on analysis, justifies or is a significant contributor to the justification of an indemnity order in costs. 3 The other matters are, next, that Mr. Monks submits in virtually every case where there was a CMC he was himself taken by surprise, and that where his applications were dismissed that was because he was taken by surprise. There are difficulties in weighing this submission in Mr Monks’ favour for a costs order on the indemnity basis. First, orders were not appealed; secondly, of the case management orders that were appealed, they came before Newey J who, after granting permission to appeal, rejected those appeals. So there is already an appeal decision with the result that I cannot take account of those matters. It is simply not open to me to re-visit those matters already appealed and inappropriate to revisit those not appealed. 4 Mr. Monks submits that perhaps the worst example of all of the various case management matters that he criticises, is the application that was before me on 13 th April, a fortnight or so before the trial, which was an application to amend to put the defence in a different way and to introduce a new witness and to introduce significant additional documentary material to the trial bundle, which I refused at the time. Had I thought that that conduct was worthy of censure by the order of costs on the indemnity basis, I would have made that order. It is clear from the order I made that that was not my thinking, and it is not appropriate to re-visit that now, or to carry that forward as an adverse factor in looking at the basis upon which costs should be awarded in respect of the rest of the action. 5 The overall conclusion that I reach in relation to the total of six points that Mr. Monks has made on the application for the costs to be on the indemnity basis is that this is not a case which is sufficiently out of the norm for the court to mark its displeasure at the conduct by the losing party through an order for indemnity costs. So the costs, when they come to be assessed, whether summarily or on a detailed assessment, or agreed, are to be on the standard basis. So that is my judgment. 6 I should add to that that Mr Monks’ submissions that have been made in writing and orally in relation to costs do make very strong criticism of both the instructing solicitor acting for Nat West and counsel. 7 In relation to the instructing solicitor, on the face of my judgment, particularly my addressing the evidence of Mr. Kelly, another of NatWest’s witnesses, in particular at para.27 and the paragraph before that, and in an earlier paragraph which is cross-referred to in para.26, which is para.20 of my judgment. The findings that are made there would have justified criticism of the conduct of the solicitor representing NatWest, because the evidence of Mr Kelly included that evidence with which he disagreed had nevertheless been included in his written witness statement. NatWest has waived privilege sufficiently in relation to the preparation of that witness statement for the solicitor to be able to make a witness statement which has been put before the court at the earliest opportunity, which is today, and which fully explains the circumstances in which Mr. Kelly came to make his witness statement. The solicitor’s evidence refers to the number of revisions – there were about six occasions that he had an opportunity to revise his statement – and to the fact that at the time Mr Kelly had expressed his satisfaction with the content of the evidence. Therefore, Mr Kelly’s disavowal of what was in para.26 of his witness statement came as a complete surprise to those representing the bank. On the material that is now before me, there is no basis for any criticism of the solicitors instructed by NatWest. Certainly there was none in the judgment for the reason that Ms. Nesterchuk gave in her closing submissions and has reminded me of again today, which is the exhortation by Lord Bingham in Medcalf v. Mardell [2003] 1 AC 120 about the need for judges to be extremely careful before expressing adverse findings against legal representatives where those legal representatives are not able, by reason of non-waiver of legal professional privilege, to explain and exonerate themselves. The solicitors’ conduct is now, by reason of NatWest waiving privilege, out in the open. So that is the answer to Mr Monks’ criticism in relation to NatWest’s solicitors. 8 Mr. Monks has also criticised Ms. Nesterchuk , NatWest’s counsel, and has suggested that she has been deceitful and misleading when appearing for Nat West. I have listened to what Mr. Monks has had to say, and also what Ms. Nesterchuk has said in response. I am entirely satisfied that she has not deceived, or been deceiving or misleading, when before the court on case management applications before other judges or before me. My impression of Ms. Nesterchuk throughout the trial has been that she upholds to the highest syandard that which is expected of every barrister; she is entirely even-handed in her dealings before the court, she argues her client’s case as fully and forcefully as possible but at the same time she is very careful to ensure that the court is not misled and does not mislead itself. So I reject those criticisms. 9 The overall conclusion – and we need to get on if we are going to finish things today – is that the appropriate order for costs is costs on a standard basis.