[speaker001:] I the defendant Doctor David... against a decision of the taxing master, taxing master of right, er given on the thirteenth of August nineteen ninety three, whereby the taxing master disallowed interest on plaintiff's bill of the cost in the action for a period from the first of November nineteen ninety one to the twenty seventh of May nineteen ninety three, the defendant in his notice of appeal, claims that the taxing master should have disallowed interest for a longer period, in addition to the period he actually al disallowed int namely there should be additional disallowance for the period from the twenty forth of April nineteen ninety one to the thirty first of October nineteen ninety one or for such other periods as the court deems just. The plaintiffs also appealed against the decision of taxing master right, er and then appealed on the basis that er there should be no disallowance for any interest at all. There is also a further appeal before the court... in relation to an application by the plaintiff for disallowance of interest upon the defendant's bill of costs and er it is claimed that if interest is to be disallowed on their bill, interest should also be disallowed on the defendant's bill of costs. So the matter arises in this way, the action that concerns a partnership dispute, er between the plaintiffs on the one hand and the defendant on the other. All the plaintiffs and the defendant were doctors carrying on practice as general medical practitioners at er. It's er... unfortunately the case that relations between the partners broke down and this led in due course to proceedings being commenced by the plaintiffs against the defendant in relation to the dissolution of the partners, those proceedings were commenced in nineteen eighty nine,, er in the High Court Chancery Division, there were a number of issues raised in the litigation, one of the matters was a preliminary issue, er concerning the terms of the partnership and that came before er Mr Justice on the eighteenth of February nineteen ninety one, whereby he found in favour effectively of the defendant on that preliminary issue er the plaintiffs it seems were then claiming that partnership, the partnership at will, but Mr Justice held that they were part of the terms of the particular er partnership deed, so the defendants succeeded on that issue, the trial of the action then followed on the twentieth of March nineteen ninety one and er Mr Justice made an order for dissolution of the partnership, he then give various directions for accountant enquiries concerning the partnership and he made orders for payments of costs, now the orders for costs were this, that effectively the... defendant was entitled to some costs of the preliminary issue and that the plaintiffs were entitled to costs of the er ma if I may put it this way, the main action, and there was then the provision for, set off for the defendant's costs against the costs ordered to be paid by the defendant, perfectly normal form of order.... [clears throat] Now if the matter arises on taxation in this way, it seems that a loan, the trial judgment was given on the twentieth of March nineteen ninety one, a minute of order was prepared and signed by counsel for both the plaintiff and for the defendants and that was forwarded by the defendant's solicitors to the plaintiff's solicitors... under cover of a letter dated the twenty third of April nineteen ninety one, er Mr who is the defendant's solicitor in the third paragraph, had a letter wrote as follows [reading] I enclose a copy of the draft minute board, approved by Mr [], he of course was counsel for the defendant, [reading] you are now, you, you were presumably now attend a sealed order []. It's er common ground that in fact er no sealed order was drawn up... until very considerably later, the sealed order is in fact dated the twenty fifth of May nineteen ninety three.... Now between during the period... from the decision of Mr Justice in March nineteen ninety one and the issue of the sealed order in May nineteen ninety three, it's clear from correspondence which has been put before me that there were er various negotiations and discussions between the solicitors for the plaintiff and the defendant dealing with the questions of costs and also with the question of a general settlement of the whole action, er it would be appreciated of course that Mr Justice order does not have the effect of determining finally the rights of the parties, erm other than the partnership has in fact dissolved because there were still outstanding issues in particular relating to the premises which were used as the surgery of the premises of the part of the prac of the practice or perhaps I should say former practice. The position was that the plaintiffs effectively retained possession of the surgery premises and the defendant er... moved out of the premises and er went and found other surgery premises and er the position as I understand it is that he is carrying on his own practice today from other premises, the plaintiffs are such as now surviving, are still continue to practice from the former part of the premises.... [cough]
[speaker002:] In [clears throat] on the fourteenth of July of nineteen ninety three the defendant took out a summons... with a view to having all the outstanding matters resolved and er this summons came before erm deputy master on the twelfth of August nineteen ninety three and he gave various directions including an enquiry in relation to how the surgery premises er ought to be dealt with as in court in the winding up of the partnership and that matter went before Mr Justice long in December and he decided those issues and gave directions in relation to and how the premises are to be sold, the effect of the directions very vaguely, is that the premises have to be offered to the partners, if only one of the partners shows any interest then there is provision in the relevant deed for ascertaining the price and this is put to that partner at that price, if more than one partner wishes to buy the premises then there is provision for a fixing of a minimum figure and then each of the partners has to put in sealed offers er and the premises will be sold to the partner, the former partner who put in the last offer, that broadly speaking I think is the substance of Mr Justice order. The position at the moment is that the defendant tells me he would like to acquire the premises because erm a low criticism has, was made of the premises as being suitable for the carry on of the doctors surgery in partner, a doctor's surgery in partnership because no doubt the space and other matters, er the defendant tells me that erm they are perfectly suitable for as it were a sole petitioner to carry on his practice from them and that is why he would like to acquire it. Now the [cough] taxation... of the plaintiff's bill of costs, came before master er and er [cough] in... his taxation, it seems, and I'm, I think I'm right in saying it, it seems that erm there is no substantial dispute as to the particular items in the various bills of costs with which he was concerned, it maybe that if there were a discrepancy, he has, he dealt with it and nothing has been said before me today, er to suggest that the figures appearing in the bill of costs ought to be varied and accordingly I have not er have to consider the detail items in the bill of costs, the only issue I didn't decide is whether master was correct in disallowing interest for the period that he did, er Mr [clears throat] for the plaintiff says that he was wrong er that there was no good reason for disallowing him any interest and that accordingly I on this appeal should erm discharge or reverse that part of taxing order as disallowed interest. Er doctor says not only was the taxing officer right in what he did, but he should of gone further and as I say he should of erm disallowed more interest, the basis of which erm... doctor puts forward that submission before me seems to be two fold, first he points out that in fact the... plaintiffs failed to perfect the order of Mr Justice er, er... sorry Mr Justice erm, until... the twenty fifth of May nineteen ninety three and that was a, I think he would say a probable failure on part of the plaintiffs and their solicitors to do with what his solicitor had asked them to do in the letter of the twenty third of April nineteen ninety one. The... other point which is made by the defendant is this, he says that the plaintiffs have been guilty of delaying tactics er during the course of this litigation, the result of which has been that er he has not been able to realize his interest in the partnership premises, also he has not been able to acquire a partnership premises and he he, doctor mentioned to me that to the... actual conveyance of the partnership premises he's, he tells me was only produced I think thirty and er that er it was only then that he realized there might be a chance that he could acquire the premises for himself, but he says that er because of the general, I think the case is, because of the general conduct of the plaintiffs in delaying the trial of the action one way or another, er the practical effect has been that the plaintiffs have had the benefit of use and occupation of the premises at which he erm, a main view, has a lot of that interest and that they are getting benefit of the kind from that occupation and he is not getting any money in res in respect of that, at least nothing like any market rent because it maybe that there is a fairly small er payment being made, but I'm not too entirely clear whether that is the case or not, but the stock bond is suggesting that the plaintiffs have been obtaining benefit of the use of the premises at his expense and in those circumstances it is unfair er in, in, or otherwise not appropriate that the plaintiffs should be entitled to obtain interest on their bill of costs, in respect essentially of the period of delay, and when I say period of delay included that the period during which the... forward of Mr Justice remained erm unprotected. When the matter came before the taxing master it appears to have proceeded on footing that erm order twenty eighty, rule four, sorry I, rule, rule twenty eighty, four sixty two er was the relevant... er... provision under which erm the taxing master disallowed interest.... Order twen er, rule twenty, eight, four provides that when a party is entitled to costs, and that of course is the case of the plaintiffs, a, fails without good reason to commence or conduct proceedings for the taxation of those costs in accordance with this order... or any direction or b, delays lodging a bill of costs for taxation, the taxing office may one, disallow already part of the costs of taxation that he would otherwise would warn about the party and two, after taking into account all the circumstances, including any prejudice suffered by any other party as result of such failure or delay as the case maybe, and any additional interest payable under section seventeen of the judgements act because of the failure or delay, allow the party so entitled less than the amount he would otherwise have allowed on taxation of the bill are wholly disallowed the costs, his provision for an appeal to allow to the judge and chambers and that is the way the matter is coming before
[speaker001:] [cough]
[speaker002:] me. Whether strictly order twenty eight, er order sixty, rule twenty eight for erm applies in this case is not amount entirely clear to me because the obligation to lodge a bill of taxation under rule twenty nine provides that he must begin proceedings for the taxation either within three months after the judgement direction or order of the terminations enter sides are otherwise perfected, and that is presently on it's face which seemed to be debited May of nineteen ninety three and er accordingly that is right, it's not in fact been any... failure to comply with order tw order sixty two, rule twenty nine, one, and that hasn't been disregarded, it's not entirely clear to me that erm [clears throat] there is any matter come from paragraph sub paragraph A of rule twenty eight, four, it may already require, still nevertheless erm fall within paragraph B of rule fo, erm there has in fact been a delay in lodging the bill of costs for taxation, the delay being really and truly, the delay in... having the order of Mr Justice perfected... and it seems to me that although in chasing matters generally speaking it is the court will itself draw the order, nevertheless where er it seems to be clearly in this case would contemplate it that counsel would sign a minute erm that counsel do sign a minute and that minute has been signed having forwarded by the defendants solicitors to the defendants solicitors seems to me it must be the case that erm the obligation to, as it were, forward that minute to the court, it is an obligation which would lie upon the plaintiffs solicitors and it maybe said that erm there has been delay and erm... on the best it should be lodged with the court sealed, er shortly after it was received and that therefore on that footing there has been delay lodging the bill of costs for concession, er Mr, doctor doesn't seemed to be take any point in relation to that er because it's not in his interest to do so, it seems to be that he does have to say if it has been delayed, with an order of twenty eight rule four... that's a rule, rule, rule twenty eight er four if he is to have interest disbarred and er Mr er he'll apparently have the matter of read before the taxing master, it seems that the taxing master did not chew any sympathy with that er suggestion, that er there was in fact no breach of the requirement rule twenty, four, Mr he said, very probably, that erm, look on text upon it, he really is concerned to erm have this case dealt with as you put it on the merits, it seems to me it's in the interest of all parties that erm I should deal with the case on merits have on the assumption erm that er, that that was lodged properly... I think, I ca I, a matter of which found within rule twenty eight, four and that the... taxing officer give our interest under that rule.... Right, it's clear in't it under four rule twenty eight, four, it's not essential for... the disallowance of any cost or interest that er the taxing officer should be satisfied that erm the other party has been prejudiced, in fact that is not a condition precedent to the exercise of his part and disallow interest in this here item, er any prejudice there maybe is merely one factor to be taken into account in other matters and it does seem to me that the fact the court can, can properly and should properly take into account, is, is that erm, it is desirable that to litigation should erm comply with there obligations, either expressly, express or explicit under the rules of the court to comply with matter such as it should have orders part drawn up and served as appropriate, as I say it seems to me that er the plaintiffs's can be criticized in not erm having perfected the order of Mr Justice er before they did so... but er, I have, it seems to me to look at all the relevant pictures in the case, er if it were the case that the plaintiff suffered any prejudice as the result of that claim, clearly that would be a matter which I would have to take into account, but I'm bound to say it doesn't seem to me that the fender of the plaintiffs to perfect the order did in fact cause any prejudice to the plaintiff and indeed if they, the plaintiffs had perfected the order, it seems to me exactly the same course of events as in fact transpired in this case, would actually have occurred and wouldn't make any difference at all, so unless it's a matter of simply of er seeking to punish the plaintiff as a matter of discipline, it seems to me there is a, not really anything in the point that the order was not perfected er when it seems to me it should of been, and I, there stood to see the other er circumstances, now it's quite clear to me having been referred to correspondence, passing between the solicitors that erm although really from a very early stage er the plaintiffs solicitors [clears throat] referring to Mr a letter of early nineteen ninety one indicating that erm the view was being taken that the likelihood was that erm the plaintiffs would have to get their costs out of the defendants share and interest in the premises and er that would be a matter which could only be dealt with when the... enquiries director by Mr Justice had been dealt with. Mr
[speaker001:] [clears throat]
[speaker002:] was the defendants solicitors, the parties during nineteen ninety one, the two solicitors, had dealt with the question of costs and er perfectly normal way, the plaintiffs have their costs, drafted by er cost draughtsman, I understand that in-house draughtsman and erm they produced to Mr a bill for costs, er Mr looked at the bill and met counter proposals and he suggested other figures, erm, figures in the region of forty two thousand pounds, forty seven and fifty thousand pounds for the plaintiffs costs, the correspondence indicates that Mr then, now put forward what with respect seems to be entirely sensible suggestion that er really it would not be sensible to proceed with having the cost taxed, he said he didn't foresee any real difficulty in getting them to agree the costs and that er the common sense thing in the interest of all parties was to see if they could reach an overall, settlement er determining all the matters in dispute, effectively this would be what was to be done in respect of the surgery premises, there was I think, there is reference in accounted to another sec another premises as well which apparently were lease, er but are now formed part of the negotiations and er negotiations continued between the parties... during nineteen ninety two, by the end of nineteen ninety two the negotiations were beginning to run into difficulties, the plaintiffs were beginning to put forward non negotiable final offers and er the result unfortunately was that in apparently nineteen ninety three the er negotiations into that broke down. Mr was well aware because he'd been told by the plaintiffs solicitors that the plaintiffs received terms for cover or to obtain interest on their costs, the plaintiffs solicitors wrote specifically to Mr enquiring was his offer in, in the sum of forty two thousand pounds, that's er the possible agreed settlement figure for costs, er if it was inclusive or exclusive of interest erm there were some delay but er Mr wrote back in due course making clear that interest wasn't included, I should also say that in Mr er proposed bill of costs he had disallowed interest for a fairly short period in respect of both the plaintiffs bill of costs and the defendants bill of costs and the plaintiffs solicitors don't appear to have erm taken any point on that, but as I say it, the point as to interest was specifically raised by the plaintiffs solicitors letter and er I'm quite satisfied on the correspondence that they... when it came to the matter were seen, were desires of obtaining interest... in respect of their costs.... The letter [clears throat] from the plaintiffs solicitors in respect of question of interest one causes, the letter of the twenty ninth of January of nineteen ninety two, asking Mr to confirm, that in addition to the settlement figure of forty two thousand pounds in respect of costs he'd be paying interest until the date of payment, and er, there was never a mind that... erm which find a reply to in, in thirtieth of March nineteen ninety two by Mr, there's no unqualified agreement in figure of forty two thousand pounds, I do not wish to appear obstructive but your clients must recognise that there are effectively two issues to be resolved, namely the payment of their costs and the division of the parts of other property, surely in all parties interest that none of these are resolved, so it is surely in all party interest that those, those are resolved contemporary and then the letter goes on to dealing with questions of valuation, the bottom paragraph on page thirty two in the bundle says [reading] in answer to your letter therefore is that there is no agreement to pay interest, if there is then my client must be credited with interest on his costs [], and then it says surgery and finally [reading] if ove if overall agreement cannot be reached then my client reserves his rights on the issue of costs and I feel that this could lead to an acrimonious and protracted taxation, at the end of the day I suspect it would only be enforced the order for costs about taking a charge in my clients interest in the surgery premises [], does that improve your clients position at all, as I say that was the position of the... thirtieth of March nineteen ninety two and during the remainder of nineteen ninety two there were then further... negotiations, some of them appeared to have been carried out er personally between er doctor and er doctor which seems to of been the partner, dealing with the plaintiffs position and er he says about his non negotiable offer at page forty one in the bundle apparently attached to a letter of the twenty first of December nineteen ninety two and er that had a time limit on, the twenty second of March, there was a reminder on the twenty second of February... and erm the plaintiffs solicitors... wrote on the fourteenth of April nineteen ninety three raising the question of costs erm say that erm... [reading] we have now received your clients instructions, that they would be prepared to accept the sum of forty two thousand in respect of their standard basis costs which is inclusive of V A T and disbursements, you remember that our initial schedule of costs which I set part of my letter of the eighth of October total fifty thousand, nine hundred and ninety eight pounds, twenty six pence, in addition to this our client would require interest from the which is as of todays date at seven hundred and sixty days at seventeen pounds, twenty six a day totalling thirteen thousand, one hundred and seventeen pounds, sixty, in the circumstances I look forward to receiving your clients cheque for the sum of fifty five thousand, one hundred and seventeen pounds and sixty pence within the next seven days [] and then it says [reading] I believe you were certainly agreeing have been very patient concerning your clients costs, but now we wish these to be paid [] and that was responded to er Mr on the twenty second of April... er... but why he quite has not been directly involved in the conversation for some time and there was not reasonable expected response for seven days from him, er and then he goes on to say [reading] that although he appreciates his firm is still on the record, I shall seek instructions from my client, but it maybe he would wish to give notice of acting in person [] and indeed that is in fact what happened, what happened in this case. Now it seems to me with erm with great respect from the view of the taxing officer, that er it's quite clear that er both parties... were holding han were holding their hands in relation to a question of taxation because negotiations were going on between the parties and indeed the defendants were being requested er not to proceed with taxation but to see if they could obtain an overall assessment and the point was met to the defendants barrister, telling quite frankly there wouldn't be much advantage in the defendants pushing on with erm taxation because they'd only, they would have to look to his interest in the property to get payment, it seems to me in those circumstances that it cannot be said that erm the plaintiffs were in any way acting improperly and not seeking to have the costs taxed during the period while the negotiations were being carried on er because effectively and
[speaker001:] [cough]
[speaker002:] Mr replied that is what Mr was asking the other to do, that is to hold their hand and to enter into negotiations, now I fully appreciate that erm doctor feels strongly that the defendants have not been negotiating in good faith and have been simply dragging matters out for his benefit, now when I say that I'm simply saying what I understand to be doctor view, I'm certainly not suggesting that I'm finding as a fact, but that was the decision, indeed I couldn't cos I've not heard all the evidence on this matter not as Mr to address me on that one, it seems to me with all respect to doctor missions on this matter that if there has been any dragging of feet or other improper conduct of either the defendants in connection with er they remain on in the premises and not paying what doctor would consider to be a full and proper rent or if there has been problem about their not disclosing documents when they should have done, the position is that doctor has er by making an appropriate application to the court, for maybe the appropriate relief arising out of the facts which he can establish, but that is not in general a matter which erm the court should go into on the question of taxation, it's not,th this particular taxation of costs is a taxation as I understand it that are formally to the debt of the order of Mr Justice and there is thus no question of the court having to consider the question when the those tax those costs have been swollen or increased in any way by reason of spinning out negotiations whether to run up costs or otherwise, that simply doesn't arising it seems to me in this case that maybe a matter which may arise possibly at some future date, though I would hope it would not do so, but er so far as the costs down to the end of the trial of the twentieth of March nineteen ninety one are concerned, it seems to me the fact that the parties maybe negotiating subsequently to deter to rece to resolve the outstanding issue, it's not a matter which really goes to the question of erm what is the proper amount to allow for taxation of costs which have already been incurred, before these negotiations erm... we don't... the figure of the costs appears to have been... effectively agreed between the solicitors at forty two thousand pounds, the plaintiff solicitors made it quite clear that they were seeking interest, this was clear in apparently of nineteen ninety two, but this held their hand, er it seems to me the reason they held their hand rather than indicate it was because the defendant through his solicitor was asking them to do so and it seems to me that Mr was acting very sensibly in the defendants interest, because if in fact they had gone ahead and taxed their costs there and then the position would simply be that there would of been an award for taxation, in order, there would be a taxation resulting in an order for payment of of some cost probably in the region of forty two thousand pounds and er that order would itself carry interest under the judgements act, it doesn't seem to me it can be sensibly said that erm any interest has to be in any way increased by reason of this delay and it seems to me that erm [clears throat] if one looks at order sixty two and twenty eight er certainly under paragraph B two... erm there's a reference there to any additional interest payable under section seventeen because of the failure on the May, erm, it doesn't seem to me that the effect of what has in fact incurred, in this case has been, caused any additional interest to be paid... and er... it seems to me the only best that I can see in the evidence before me to, which would enable the court to erm, conclude that there should be a disallowance of interest would be as I say because the plaintiffs appear not to have perfected the order for... the payment of perfectively two years, just over two years, erm it seems to me however that, that... on balance probably it simply a matter of oversight and even if it had been perfected it wouldn't of made as I guess the least bit of difference to the way the negotiations er proceeded and accordingly I take the view that erm there are no grounds for disallowing interest from either the plaintiffs bill of costs or the defendants bill of costs, accordingly erm to allow the defendants appeal in preparation to the disallowance of costs er interest and to dismiss the defendants appeal for application in relation to an additional period, P sixty of course disallowed, I also propose to dismiss the sum of, the appeal by the plaintiffs from the refusal of taxing master to disallow the interest on the defendants bill of costs.
[speaker003:] Well there was just, it's not, surprising it's a very long day, when you initially said I allow the period of the plaintiff by mistake you said defendant, just for the record
[speaker004:] I allow that, it is the
[speaker003:] it's the substantial the plaintiff isn't it, that's allowed
[speaker004:] yes I allow the plaintiffs appeal and dismiss the defendants as it were cross appeal from the order in erm... it's the August er taxing master right of the twelfth, twelfth of August isn't it?
[speaker002:] but I only put that in case the
[speaker004:] yes, thank you, that is, thank you, thank you very much
[speaker003:] my Lord all that follows now is that question costs in this my Lord there is no doubt that er this is the painful experience for both the plaintiffs and of course for doctor who is unrepresented and therefore must inevitably feel rather isolated in this matter erm, however in my there is no reason to er depart from the usual principal of the costs which should follow the event and of course we know as it the loss on the subsidiary appeal and so I don't press the point on that cos the reality as you've already probably anticipated is all the work has been done erm on this appeal the subsidiary appeal I ask, I don't ask for costs on that, in my submission it should be both sides bear their own costs on that, the reason I say that is that there was no, there was no cross appearing in respect on it in effect, cos after all, all you were doing was er trying to get the same as the other side if we lost, so no worm of can of beans can be done by doctor I had one parallel in my whole skeleton on that, er, but we have substantially succeeded on the main issue and so I, I would ask that costs in favour of the plaintiffs on, on that and here and indeed below.
[speaker004:] what was the order of those costs made below? equally
[speaker003:] cost in both, on both er summonses the costs were against my clients...
[speaker004:] so
[speaker003:] but, but I accept that er
[speaker004:] Mr has got costs below, yes, erm...
[speaker003:] I accept that you can't, I should of added that in respect of the decision of er September second decision
[speaker004:] mm
[speaker003:] you, you wouldn't be fair of me to ask you to change that
[speaker004:] no I think I mean that's
[speaker003:] I would think that's a chance we took and we lost it [LAUGHTER]
[speaker004:] yes
[speaker003:] but I've not our costs
[speaker004:] yes Mr doctor
[speaker005:] I'm sorry my Lord for saying this erm, erm I'm, I'm, well I am really gonna ask for legal fees on this
[speaker004:] well I'll deal with that after we've dealt with the question of costs, what do you say on the question of costs doctor?
[speaker005:] erm, erm feel like they're getting the benefit again, again and again, you now make the costs of at every point they take another, they've got more coming in, erm in terms of cash and er at every point I seem to loose, I loose the first case in ninety one and everything now seems to go against me, it seems as though I don't stand a chance any more....
[speaker004:] I think I must make the ordinary orders to costs, well what I will do is erm... doctor must I think pay the costs of the appeal against the order of master erm both here and below... on the other hand the defendant seems to be able to bear the costs of the appeal against the September order, that's the order, that's the order of, is that Mr?, er sorry when I say the doc doctor bears the costs must er in fact he must, right, it is the August, that's the August decision both, both before erm the taxing officer and on this appeal... and er the, I dismiss the defendants appeal against the September board with costs
[speaker003:] oh yes I'd object to the settlement
[speaker004:] and again I'll direct that the costs will be set off, seems to be the sensible course
[speaker003:] well yes did...
[speaker004:] yes
[speaker002:] for which one it shows I'm afraid, my I ask for er if it's required certificate for counsel maybe required for taxation later on....
[speaker004:] erm, well I think it's,do, erm I don't know whether you understand what's been asked doctor it cou it's a question of costs, er normally where er matters erm are dealt with in chambers for in counsel appear then erm these counsel don't get paid for the other side erm unless there is certificate for counsel as I understand it, were the, were the counsel appeared before the Judge erm they are entitled to their costs... and this is er an appeal to the Judge, but er what I think Mr is saying is, in case he happens to be wrong in that he would like an order that er his fees should be proper fees of the defen of the plaintiffs on this appeal and er such as you could say seems to me that er, that is a, that would be proper yes, I think it's been of an assistance to the court yes, assistance to me that erm Mr has been at least only to of explain the background which erm is not entirely, not an easy matter, so er if it's necessary I'll give a certificate
[speaker002:] I'm grateful, that's for today, erm my Lord it may sound slightly more erm contentious, but I'd also ask for certificate for counsel for the thirteenth of August hearing, may I say the reason for that, it's a matter that hasn't come before you, you won't know about, it's this, this reason, because at that period it wasn't just the application under twenty eighty or twenty eight, four for delay there was another application er, which was unsuccessful which hasn't been proceed today, but cost were also disallowed with more serious reason, I submit that said showed er negligent or that improper conduct, there was a substantial attack mounted, and I can use no other words fairly describe it on the professional conduct of and for that reason my Lord er both cos the seriousness of the allegations, but of course also because of the potential conflict that they acted for themselves and it would of been in situation for us solicitor hence to turn up, er they instructed counsel and my self, and so for that double reason in my believe we should be entitled to at, at first stage, ordinarily I wouldn't of had a very good run for argument but I, it's my suspicion my clue recollection, be backed up by those behind me, and indeed by the documents that a substantial attack was mounted and it was in, I have to say in full flight terms, and much hence couldn't be said to be unreasonable to deem if necessarily, unusually to send counsel in front of a taxing master, well I won't say any more on the point, but that is my suspicion
[speaker004:] What was the taxing off asked for certificate for counsel, presumably he wasn't
[speaker002:] well, huh, my Lord having lost erm taxing master didn't
[speaker004:] no I'm sure he didn't
[speaker002:] well rather
[speaker004:] didn't have to pay the costs, it didn't really arise
[speaker002:] no, that's correct
[speaker004:] yes, that's right.... Is it right doctor that you made a, an attack on professional confidence of, other than in a relationship the erm profecting of the order
[speaker005:] My Lord it is since that erm because, as you mention that er because of all the delay, that I am quite sure that positively intended erm I lost large sums of paying my solicitors, solicitors as well as a surveyor and therefore I attempted to er, er to recoup that
[speaker004:] yes
[speaker005:] I didn't er...
[speaker004:] yes I see, I think er unfortunately doctor I... in this particular case I ought to make an order for certificate for counsel erm in the current, in respect of the costs incurred below on the thirteenth of August... seems to me do er the proper kind of case in which to instruct counsel. Erm, I think so there's no dispute as to what the terms of the order are, er Mr it might be helpful if you could erm prepare a minute of order for lodging
[speaker002:] certainly
[speaker004:] of course, er provide a copy of that to erm doctor before it is lodged and, I'm sure it can be agreed
[speaker002:] my Lord do, do we agree to that now or by tomorrow morning?
[speaker004:] well I would think if it could lodged during the course of the next ten days or so
[speaker002:] certainly, it'll be done by tomorrow morning
[speaker004:] I'm, I'm, if there any question over it, the reason why I said ten days I'm already sitting in London for, until the end of next week and therefore if there were any question, it's obvious that it came before me, and that
[speaker002:] it'll be done by tomorrow morning
[speaker004:] yes
[speaker002:] thank you
[speaker004:] yes, yes, that can be prepared and erm a copy of that to doctor and
[speaker002:] certainly
[speaker004:] doctor if you don't agree with what it says, erm, you can obviously mention that to and er er along speedily say in the course of this week, the matter can be mentioned in formal to me, erm one morning at ten o'clock next week I would of thought....
[speaker005:] In terms of I need to appeal this one
[speaker004:] oh yes, leave to appeal, erm... it doesn't seem to me that this is an appropriate case for leave, or at least for me to grant leave, doctor...
[speaker006:] All court rise...