Landlord and tenant–Question as to whether landlord’s consent to proposed assignment of lease of shop and dwelling-house had been unreasonably withheld–Unusual case and unusual course taken by Court of Appeal–Application by tenants for declaration based on completely fictitious transaction–Purpose to put pressure on landlord, who had in the past been difficult about prospective assignees, by putting forward a nominee with first-class references (tenants’ son-in-law) who was never intended to be a genuine assignee–If the court decided that the landlord’s refusal of consent was unreasonable, the landlord would be given ‘a bit of a fright,’ the nominee would withdraw and the landlord would be more likely to consent to a genuine assignee–Counsel’s ‘bombshell’ in county court, where, however, judge held refusal of consent unreasonable–Judge reversed on an issue of primary fact–Deliberate attempt here to deceive and mislead the court–Abuse of process–Appeal allowed and declaration that consent had been unreasonably withheld set aside
This was an
appeal by the landlord, Alex Anderson, from a decision of Judge Clapham at
Wandsworth County Court in favour of the tenants, Percy Hatfield and Beatrice
Hatfield, his wife. The tenants had sought a decision that the landlord had
unreasonably withheld consent to the assignment of a lease of a shop and
dwelling-house at 473 Blackfen Road, Bexley, to a proposed assignee called Mr
Cherry. The judge, although holding that it had been established in
cross-examination that the tenants’ application was based on a fictitious
transaction, nevertheless granted the declaration.
Peter
Kenworthy-Browne (instructed by Cook, Taylor & Co) appeared on behalf of
the appellant; C Drew (instructed by Chancellor & Ridley) represented the
respondents.
Giving the
first judgment at the invitation of Stephenson LJ, BRIDGE LJ said: This is an
appeal from a judgment of His Honour Judge Clapham given in the Wandsworth
County Court on March 19 last year on an originating application made by
tenants of business premises declaring that the landlord had unreasonably
withheld consent to the assignment of the lease to a proposed assignee.
I can deal
with the background to the matter quite shortly. The successful applicants, the
respondents in this court, held for a number of years (we have not been told
exactly how long) a tenancy of a shop selling cigarettes, tobacco,
confectionery and a variety of other items at 473 Blackfen Road, Bexley. The
rent they used to pay was £400 a year, but some time in the early 1970s steps
were taken to determine the tenancy under the Landlord and Tenant Act 1954 and
that led to an application to the court for the grant of a new lease. That was
opposed by the present appellant, who had become the landlord, on the ground
that he intended, if he obtained possession of the premises, to demolish and
reconstruct them. He must have failed to satisfy the court on that occasion of
the bona fides of his intention, or of his ability to carry it out, because
those proceedings resulted in the grant of a new lease and it is that new lease
with which we are concerned and which was the subject matter of the proposed
assignment. The lease is dated March 12 1975. It describes the premises as
comprising a shop and dwelling-house. Presumably this was a shop on the ground
floor and a flat above. The term of the lease was a term of 14 years from
November 12 1972. It was to be at a yearly rent of £850 during the first five
years of that term and thereafter there was provision for the rent to be
reviewed. There were repairing covenants in the lease, the details of which I
need not mention. There was a covenant to use the shop part of the premises
only for the sale of confectionery, tobacco and a number of other named ranges
of goods. There was a covenant not to use the residential part of the premises
other than as a private dwelling-house, and then, most importantly of all, the
tenants’ covenant number 15 in the lease:
Nor to assign
underlet transfer or part with the possession of the demised premises or any
part thereof of this Lease without the previous consent in writing of the
Lessor but such consent shall not be unreasonably withheld if the proposed
assignee or underlessee shall be a respectable and responsible person.
It appears
that from a date quite shortly after the granting of the lease the tenant and
his wife had been anxious to dispose of the business carried on in the shop and
to move from the demised premises to a bungalow somewhere else. The tenant is
now over 70 and his wife is in poor health. He had made several attempts to
find willing and suitable assignees to whom he could dispose of the premises,
but every such attempt had been frustrated by the landlord. The initial
proposal had involved not only a proposed assignment to an assignee but a
change of the use of the premises and that was something to which no doubt the
landlord could withhold his consent whether reasonably or otherwise. But
subsequently a number of proposed assignees were put forward and the matter
never got as far as the formal application for the landlord’s consent to
assignment because the landlord’s practice was on every such occasion to insist
that he be permitted to interview the proposed assignee personally, and in the light
of the learned judge’s findings made about this part of the story, it is quite
clear that the landlord set about deliberately frightening off every proposed
assignee, and indeed did so successfully. It is only right that I should refer
to two short passages from the judgment in which the judge makes the view he
formed about the landlord’s tactics perfectly clear. He said of the landlord:
‘If he could not develop the premises himself’ (that having been his declared
intention when he opposed the grant of the current lease) ‘he wanted to sell
with vacant possession, and he thought that if he prevented an assignment, the
applicants would have to surrender for no consideration, or for less than the
true value. There were some negotiations for the sale by the applicants of
their lease to the respondent; the parties were far apart on figures. He was
trying to get a surrender for no consideration or for a very small
consideration.’ Then he added later: ‘I
do not accept that he’ (that is the landlord) ‘was anxious to have someone who
could pay the rent and comply with the lease; what he wanted was possession. If
he had really been genuinely concerned with their ability to pay the rent, he
would not have been worried about taking them, because if they did not pay he
could forfeit. What he did not want was someone who could pay and would stay
for 14 years, so he placed difficulties in their way asking for guarantors and
other things. Once he was offered a year’s rent in advance, but even that did
not produce consent.’
Eventually the
tenants put forward as the name of a proposed assignee, a Mr Cherry, and we
find the tenants’ solicitors writing to the landlord’s solicitors on October 7
1977 in these terms:
A new
prospective purchaser has been found for our clients’ interest in the above
premises
(473 Blackfen
Road, Bexley)
and we enclose
herewith three references together with copies of our letters requesting the
same.
We shall be
pleased to hear from you as soon as possible with confirmation that the
landlord approves the proposed assignment. Please also let us have a draft of
the licence to assign.
There are
three references, two lay references and a bank reference in respect of Mr
Cherry, who was the proposed assignee. Concurrently there were outstanding, at
this time, disputes between the landlord and tenants about the fixing of a new
rent and about certain dilapidations in respect of
Act 1925. In reply to the request for consent to the assignment to Mr Cherry
the landlord’s solicitors wrote on October 18 1977 referring to costs
outstanding in respect of the section 146 notice, and then saying:
He
(again meaning
the landlord)
is not
prepared to consider references in respect of proposed assignees until these
matters have been dealt with and also until the new rent has been agreed.
It was on the
basis that that was an unreasonable refusal of consent to the proposed
assignment that the tenants then, on November 17, issued their originating
application. That refers to the lease. It refers to the covenant against
assignment without consent and pleads importantly in paragraph 3 as follows:
The
applicants not being able to continue the business at the said premises due to
their ill health negotiated the sale thereof to the said Dennis John Cherry
subject to obtaining the consent of the respondent to the assignment of the
said lease.
Then there is
a reference to the two letters to which I have referred and it is asserted that
by the letter of October 18 the landlord had unreasonably withheld his consent.
The original
defence to this action raised four matters as justifying the landlord
withholding consent. The first related to dilapidations; the second related to
unpaid costs of a section 146 notice; the third to the fact that the rent
review had not yet reached finality and the new rent payable after the first
five years of the 14-year term had not yet been settled, and the fourth matter
related to an alleged inadequacy in Mr Cherry’s references. There was also a
counterclaim advanced by the landlord in respect of the alleged dilapidations
and claiming a declaration that his consent had not been unreasonably withheld,
forfeiture of the lease, damages for the breach of repairing covenants and
costs of preparing the section 146 notice.
The case first
came on for hearing before Judge Clapham on February 27 1978. It was then adjourned
in order that the counterclaim might be referred to a special referee. That was
done, but in due course the landlord’s counterclaim was withdrawn and the
second hearing of the proceedings on the applicants’ claim was not held until
March 12 1979.
The issue on
which this appeal turns emerges for the first time out of testimony which was
given at the two hearings. What gave rise to that testimony and what led to the
matters to which I am about to refer being brought into the controversy at the
hearing was the disclosure on discovery on the tenants’ side of what one can
only describe as a very remarkable document. It was a letter dated August 20
1977 written to the tenants’ solicitors by a firm of estate agents who had been
acting for the tenants in relation to the proposed assignment of the lease and
seeking to find a suitable assignee for them. The letter itself does not
matter; it records yet one more instance where a prospective assignee had been
discouraged by the landlord and expresses the frustration which was felt
generally on the tenants’ side by the tenants and their various advisers. What
is important is the manuscript note which appears on that letter, over initials
which appear to be the initials of the senior partner in the firm of solicitors
advising the tenants. The note is in the following terms: ‘Discussed with Mr
Hatfield.’ That means, no doubt, they
discussed the difficulties of effecting assignment of the premises. ‘No
solution to problem seen. Consider again putting in nominee (son-in-law) if he
can get first-class references. We then apply for licence. If refused we go to
court, Anderson loses, nominee purchaser withdraws, new genuine purchaser
appears, Anderson thinks twice. Mr H’ (that is the male tenant) ‘will discuss
this with his son-in-law and we will also give further thought.’
It is out of
the existence of that note and the evidence which came out at the hearing, no
doubt by virtue of that note having been seen by the landlord’s advisers, that
there emerges the true issue with which we are now concerned in this appeal,
namely, the issue as to whether or not, putting it in quite broad terms at this
point, the tenants’ application for a declaration that the landlord’s consent
to a proposed assignment had been unreasonably withheld was, as the landlord
was eventually to contend, based on a completely fictitious transaction.
With that
introduction I turn to the heart of the matter which is the evidence that was
given. I start with the evidence of Mr Hatfield, the male tenant, who is in the
course of being cross-examined by Mr Kenworthy-Browne, for the landlord, on the
first day of the hearing, February 27 1978. Up to this stage the position is
that this must have appeared to the court to be an application for a
declaration in respect of a landlord’s refusal of consent to an assignment of
the beneficial interest in the lease to a proposed assignee who was proposing
to purchase that interest. The first disclosure was that the assignee was the
tenants’ son-in-law, but even after that disclosure had been made, the evidence
of Mr Hatfield continued, perhaps encouraged by Mr Kenworthy-Browne, who had
not yet exploded his bombshell, as if there were a perfectly normal and
straightforward proposal for the assignment to the son-in-law, Mr Cherry, as
one who would occupy the premises and take over the conduct of the business. Mr
Hatfield is recorded as saying, ‘he’ (that is Mr Cherry) ‘hopes for us to stay
until we get somewhere else to go. He is not moving into the premises until we
find somewhere else to go. I do not know how long that will take. I shall
continue to run the business for the time being. This will continue not too
long I hope.’
And then: ‘I
have not agreed the price for this business.’
Again, an answer consistent with representing to the court by
implication that this was, as had been pleaded, a sale to Mr Cherry. ‘Mr Cherry
has not instructed surveyors. I do not know if he has solicitors acting for
him. He knows what the accounts are. He has not studied books of accounts.’ Then Mr Kenworthy-Browne begins to pull out
the pin of his hand grenade. ‘I had hoped,’ answers Mr Hatfield, ‘to keep it a
secret that Mr Cherry was my son-in-law. I was hoping everything would be all
right. I was anticipating that there would be a court action to establish
unreasonable refusal by the respondent.’
Then the bombshell explodes. ‘It is a fictitious transaction. I was
hoping I could get the licence.’
Mr
Kenworthy-Browne, of course, was putting his questions on the basis of what he
had read in the note on the letter dated August 30 1977 to which I have
referred. He was hoping to put this note directly to Mr Hatfield, but it was
held, after argument, that he could not do that; nevertheless he succeeded,
although not putting the note itself, in putting the substance of the facts
which the note contained, and the question elicited this answer: I decided to
put up my son-in-law as a fictitious nominee and then Mr Cherry would withdraw
and then a further assignee would be put forward and Mr Anderson having failed
once would not object. Then comes the most important answer: ‘Mr Cherry never
had any intention of taking lease if we got a licence for assignment.’
In
re-examination he is recorded as saying: ‘If I got permission to assign to my
son-in-law, I would assign.’ But I
cannot forbear to interpose that it is difficult to see how any weight can be
given to that answer when it directly contradicts the answer he is just
recorded as having given to the cross-examiner. But however that may be, as
will be seen, the matter really became abundantly clear more than 12 months
later when the hearing was resumed on the second occasion.
I quote from
the evidence given by Mr Hatfield on March 12 1979. He was further examined by
his own counsel and in reply to questions, said: ‘Mr Cherry is still prepared
to take assignment. He would take over responsibility without
again.’
In
cross-examination he said: ‘The object of these proceedings was to give the
respondent a fright. I hoped that if this went through Mr Cherry could assign
to someone else. Object was to get a declaration that the respondent was
unreasonably withholding consent.’ Then
a specific question and answer were recorded in a form which suggests they are
being recorded verbatim. ‘Question: At the time of last hearing intention was
by means of fictitious application to get declaration of unreasonableness and
then Mr Cherry would withdraw and another assignee would be substituted?’ ‘Answer:
Yes. Mr Cherry will now take an assignment of lease.’
Reading those
questions and answers together to my mind finally disposes of any substance
that there could ever have been in the answer recorded in re-examination at the
first hearing where Mr Hatfield said that he would assign if he got permission
to do so.
There was
further evidence by Mr Hatfield in cross-examination: ‘Mr Cherry will not pay
me for assignment nor for goodwill of the business. I should continue to live
on the profits of the business. Mr Cherry would pay the rent. I would reimburse
him, and also pay for insurance and costs of repairs. Mr Cherry would I suppose
be a figurehead.’
Finally Mr
Cherry himself is called. In chief he said: ‘It is my intention to take an
assignment. No premium. The applicants would continue to run the business. Mr
Hatfield would provide the finance for running business.’ In cross-examination he said: ‘Mr Hatfield
would discharge to me the responsibility for rent and repairs. I would reassign
at earliest possible opportunity. I would take over all litigation. Mr Hatfield
would pay all costs of assignment. I would look to a further assignee.
Advantage of transaction to take Mr and Mrs Hatfield away from Mr Anderson.’
With those
passages of the evidence in mind, I turn to the learned judge’s judgment and I
need only read some quite short passages which, so far as I can see, are the
only passages where he says anything on what I will describe as the issue of
the fictitious transaction. In the first passage he says:
Mr Cherry is
the son-in-law of Mr and Mrs Hatfield. Mr Hatfield admitted in
cross-examination that the application was based on a fictitious transaction.
In
re-examination, however, he went on to say that it was intended that there
should be an assignment to his son-in-law, who has a responsible job at £12,000
pa. They would continue to run the business temporarily, and hopefully Mr
Cherry would find another assignee, and Mr Anderson would be asked to approve
another assignee. That was how it came out in evidence from Mr Hatfield.
Further on he
says:
It is said on
behalf of the respondent that these proceedings are an abuse of the process of
the court in that it is not and was not the applicants’ intention to make any
assignment: the whole object was to give Mr Anderson a bit of a fright. I have
to consider this very carefully. I conclude that it is not an abuse of the
process of the court at all.
I am
satisfied that at all material times the intention was that there should be an
assignment to Mr Cherry: the Hatfields to run the business as long as they
could (Mr Hatfield wants to retire, and Mrs Hatfield is in poor health), and Mr
Cherry as soon as convenient would try to find another assignee.
Having regard
to the whole of the correspondence and having heard Mr Hatfield and Mr Cherry,
I am satisfied on the evidence that that was their intention at the time of the
application for consent and when the proceedings started, and throughout the
proceedings until today.
Then later:
I have
referred to the writing on the letter at page 116
(that is the
letter of August 20).
The
respondent’s solicitors knew of this since discovery, fairly soon after the
proceedings were started. I find that it did not influence Mr Anderson at all.
He said in evidence that he did not know of the writing, which I understand to
mean that he did not know the substance either.
(I interpose
that, as Mr Kenworthy-Browne pointed out, that answer given in evidence cannot
possibly have beer true).
He knew that
Mr Cherry was the son-in-law, and was suspicious. In my view he adopted the
same attitude as to the others: he raised difficulties and procrastinated. He
was determined not to consent to anyone. He was asked at the end of his
cross-examination whether he would now accept Mr Cherry; he answered (as he was
entitled to) that he was not prepared to answer that without advice. I asked
him if he wanted to interview Mr Cherry there and then. Again he replied that
he wanted advice before he answered that question.
I do not
consider the application an abuse of the process of the court: I think the
proposed transaction honest and the application to the court honest. The
applicants were driven to adopt this circuitous method of disposing of their
lease by the behaviour of Mr Anderson over some considerable period.
Finally:
As to
paragraph 2A, it is true that there were no negotiations for a sale of the
business to Mr Cherry, although this was specifically asserted in the
application. But I find that at all material times the intention was to assign
to him, including the time when the application for consent was made by the
solicitors, the start of the proceedings, and up to today.
I regret to
say that I am quite unable to accept the substance of those findings by the
learned judge in the light of the evidence. It is most unusual for this court,
particularly on appeal from a judgment of a judge in the county court when we
do not have a shorthand note and transcript recording verbatim the evidence
that was received, to be in a position to reverse the court of trial on an
issue of primary fact, but it does sometimes happen that we have to take that
course and if ever there was a case in which it was necessary, it seems to be
this one.
I have read
the material passages from the evidence; I have made my comments on them as I
have read them; I do not need to repeat those comments at this point in my
judgment. Those comments, I hope, demonstrated that in my view the evidence led
clearly to the conclusion that, at all events up to the end of the first
hearing of this matter, there was no intention at all on the part of the
Hatfields to assign the leasehold interest of 473 Blackfen Road to Mr Cherry.
It may well be that by the time the second hearing took place, when the tenants
and their advisers had had a full opportunity to reconsider the matter, it had
then been genuinely decided that if the proceedings were successful, as a
matter of form the tenants would go through the motions of executing an
assignment of the legal interest in favour of Mr Cherry, but by that time the
only matter which could have been in issue, to which such an intention was
relevant, was the question of who should succeed in the proceedings and for the
important reason that that would determine who would have to pay the costs. But
on any view, even if I were wrong in saying that there was no intention to
effect any assignment of the leasehold interest to Mr Cherry at the time when
the consent to the assignment was originally sought and up to the end of the
first hearing, whenever the intention to effect such an assignment was formed,
it was clearly never anything more than an intention to assign the bare legal
estate. The unambiguous evidence of Mr Hatfield and Mr Cherry himself showed
clearly that if he ever took an assignment he would take it on terms that he
held the premises as a bare trustee for the Hatfields. They would continue to
occupy; they would continue to enjoy the beneficial interest in the premises;
they would continue to pay all the outgoings.
As Mr Drew
perfectly fairly conceded on behalf of the tenants, if a tenant asks consent of
his landlord to assign a leasehold interest in premises such as these, if he
applies to the court pleading that he has sold the leasehold interest
to a proposed assignee and seeking a declaration that consent has been
unreasonably withheld, the clearly implicit representation made is that the
proposed assignment is an assignment of the beneficial interest in the
property, not merely of the legal estate.
Having regard
to these first two conclusions, I would say, first of all, that I am entirely
satisfied that the landlord was justified, or shown in the event to have been
justified, in withholding his consent. However unreasonably he may have acted
in the past, and however unmeritoriously he may have acted in relation to
earlier attempts by the tenants to find an assignee to take the premises, by
the time it came to Mr Cherry, and by the time the truth of that transaction
had been unveiled at the end of the evidence, it was perfectly clear that it
was not a genuine transaction to which a genuine consent was required. The
highest that Mr Drew is able to put it is that one purpose of an assignment to
Mr Cherry, if and when there was an intention to assign the legal estate to
him, was to place him as a kind of buffer between the Hatfields, who were fed
up with their negotiations with Mr Anderson, and place on his shoulders the
responsibility for future negotiations so as to save the Hatfields from strain.
But that seems to me, seen in the light of the realities of the situation,
wholly insufficient to escape from a conclusion that this was, as Mr Hatfield
twice frankly conceded, a wholly fictitious transaction. The purpose was to put
pressure on the landlord so that he would be softened up and would be more
likely to come forward with an unforced consent if and when a genuine assignee
could be found who was willing to take the premises, pay for them and go into
occupation of them. Quite apart from any other consideration, as was pointed
out in the course of the argument by Templeman LJ, if an assignment had been
effected to Mr Cherry, who had taken the bare legal estate with no intention
himself of ever going into possession of the premises but leaving the Hatfields
in possession, he would, from the very moment when he became the assignee have
been in breach of covenant 15 by himself parting with possession of the
premises to the Hatfields.
But there is,
I fear, another more serious aspect which leads to the conclusion that on any
view the tenants’ application must fail. It was said by Plowman J in the case
of Re Bellador Silk Ltd [1965] 1 All ER 667, where there was a petition
to wind up a company, at p 672:
A petition
which is launched not with the genuine object of obtaining the relief claimed,
but with the object of exerting pressure in order to achieve a collateral
purpose is, in my judgment, an abuse of the process of the court, and it is
primarily on that ground that I would dismiss this petition.
In my judgment
it has to be said here that this was an application which was made, not with
the genuine object of securing a declaration that an assignment to Mr Cherry
was one for which consent should not be withheld, but with the object of
putting pressure on the landlord with a view to securing his consent to some
other and later assignment. This was clearly a collateral purpose. What is
worse, I fear, there is no escape from the conclusion that there was here a
quite deliberate attempt to deceive and mislead the court. Up to the moment
when Mr Kenworthy-Browne exploded his bombshell in the course of
cross-examining Mr Hatfield on the first day of the hearing, as I endeavoured
to show in referring to the pleadings and in reviewing the earlier passages in
the evidence, the picture which was being painted for the court was of a
perfectly straightforward proposed assignment of the beneficial interest in the
leasehold premises to a purchaser of that interest with whom the applicants, as
tenants, had negotiated at arms’ length. Indeed, if the note on the letter of
August 20 1977 had never come to light and, also, if Mr Anderson, the landlord
had not happened to notice that one of the witnesses’ signatures on the
original lease was that of Mr Cherry and thereby to suspect some close
relationship, it might be that the court would have been effectively deceived.
It is perfectly clear that anyone who institutes litigation in such a way that
he can be said to have set out to deceive the court is, at the very least,
abusing its process, if not, indeed, acting in contempt of court.
For those
reasons I reach the unavoidable conclusion that this appeal has to be allowed
and the learned judge’s order set aside. But I cannot leave the matter without
adding this final word; at the very lowest it does seem to be most unfortunate
and most ill-advised on the part of the applicants’ solicitors that they lent
themselves to the advancement of the scheme which was involved in this
application to the court, knowing as they evidently did, in the light of the
note on the letter of August 20 1977, what lay behind the scheme. It is not for
this court to pronounce in any way as to the rights and wrongs of the matter as
between the applicants and their solicitors, but I feel it only right to say
that if it were to transpire that the scheme was initiated because the
solicitors advised the applicants that it was a suitable scheme for them to
pursue, it might very well be, I put it no higher than that, that the
applicants would have some remedy against their solicitors for what will have,
in the event, turned out to be for them, subject to any question of legal aid,
a very expensive and unsuccessful scheme in the end.
Agreeing,
TEMPLEMAN LJ said: The tenants did not ask the landlord, and never intended to
apply to the court, for an assignment to Mr Cherry as trustee for the tenants
in order to provide some protection for the tenants from what they reasonably
regarded as protection from harassment by the landlord. If they had made such
an application, I know not what its fate would have been. In fact, the tenants
asked the landlord, and applied to the court, as though they proposed to assign
to Mr Cherry, not as trustee, but as beneficial owner, giving the impression,
until evidence was given, that he would enter into possession and conduct the
permitted trading of the shop, and occupy the living accommodation comprised in
the demised premises in all respects as the tenant. In fact, the tenants only
intended to give the landlord, as they put it, ‘a bit of a fright.’ It seems to me quite clear from the
correspondence, the pleadings and the evidence that the tenants attempted to
deceive the landlord and the court as to the reason for the application, and as
to the capacity in which Mr Cherry would hold the lease, if indeed he ever took
an assignment, though the attempt broke down at an early stage.
Without being
censorious and realising the attempt to deceive was embarked upon in
desperation and without appreciating the nature and consequences of that
deception, I am quite satisfied that the court cannot maintain or grant to the
tenants the relief for which they claim in reliance on their own deception.
Whether the tenants acted on advice, and if so what was the nature of that
advice, and what the consequences are on those who tendered any advice, are
matters upon which the tenants will no doubt be encouraged to seek further and
independent advice from another source.
For these
reasons and for the reasons given by my Lord, Bridge LJ, with whose judgment I
am in complete agreement, I would allow the appeal.
STEPHENSON LJ
expressed agreement with both judgments.
The appeal
was allowed and the declaration that the landlord had unreasonably withheld
consent to the proposed assignment to Mr Cherry set aside. The respondents were
ordered to pay the appellant’s costs in the Court of Appeal and the costs below
on scale 4 with discretion on all items under Order 47, rule 21(2).