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Case No.:QBENI 99/0264/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Nicholas Chambers Q.C.
(sitting as a deputy Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 12 April 2000
B e f o r e :
LORD JUSTICE MANCE
and
MR JUSTICE HARRISON
|
LEON
BRAUNSTEIN
|
Respondent/Plaintiff
|
|
and
|
|
|
MOSTAZAFAN
& JANBAZAN FOUNDATION
|
Appellant/
Defendant
|
- - - - - - - - - - -- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - -- - - - - - - - - -
Miss G Andrews (instructed by Messrs. Yusaf & Baker) appeared for the
Appellants
Mr R Tager Q.C. (instructed by Braunstein & Co.) appeared for the
Respondent
- - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE HARRISON:
1. This appeal relates to the defendant's application to strike out the
plaintiff's action for want of prosecution. On 15 July 1998 Master Tennant
acceded to that application and dismissed the plaintiff's application. On 30
November 1998 Mr Nicholas Chambers, QC, as he then was, sitting as a Deputy
High Court Judge, allowed the plaintiff's appeal against that decision. He
held that, although there had been inordinate and inexcusable delay on the part
of the plaintiff, there was insufficient prejudice to warrant striking out the
action. Permission to appeal against the judge's decision was granted after an
oral hearing by Peter Gibson LJ on 18 March 1999.
2. The defendant is a substantial Iranian foundation, known as the Bonyad,
which manages commercial and charitable interests. The plaintiff is a
solicitor practising in London. His claim, as amended, is for £205,000
for work carried out as the defendant's solicitor between 15 July 1991 and the
end of December 1991 in connection with negotiations for a contract between the
defendant and the Rover Group ("Rover") for the distribution of motor vehicles
in Iran.
3. The defendant denies that the plaintiff was acting as its solicitor. Its
case is that the plaintiff was acting together with Mr Jafari, the owner of a
company called Irco International Ltd ("Irco") and Mr A.A. Mokhberi, the
managing director of a company called Samin Yadak, as a team of brokers
liaising both with Rover and the defendant to negotiate the conclusion of the
distribution agreement between Rover and the defendant.
4. The plaintiff's case is that in July 1991 the defendant took over the
negotiations with Rover and that Mr M.B. Mokhberi, the head of the defendant's
commercial organisation, confirmed to him orally that he was now to act as the
defendant's lawyer and that the defendant had taken over responsibility for his
fees, both those in the future and those incurred in the past on behalf of Irco
and Samin Yadak.
5. On 4 September 1991 the plaintiff wrote to Mr M.B. Mokhberi confirming his
understanding that he was to act as the defendant's international legal
counsel, setting out his hourly charging rate and asking for Mr Mokhberi to
sign a copy of the letter to signify his agreement to the plaintiff's
appointment. The letter was not signed by Mr Mokhberi.
6. On 11 September 1991 an agreement was reached between the defendant and
Rover for the distribution of motor vehicles in Iran. The plaintiff says that
he carried out a great deal of work on behalf of the defendant in order to help
achieve that result. He relies on two letters dated 12 September 1991 as
confirming that he was retained by the defendant as its legal adviser. Both
letters are purportedly signed by Mr M.B. Mokhberi. The first letter, which
has been referred to as "the legal fees letter", contains the terms and
conditions of the plaintiff's alleged retainer by the defendant, and the second
letter, which has been referred to as "the page 167 letter" and which purports
to have been written by Mr Mokhberi, confirms the terms of the retainer. The
defendant's case is that both of those letters are forgeries.
7. On 14 October 1991 the plaintiff wrote to the defendant saying that he had
been working flat out on the Rover project for 3 1/2 months on behalf of the
defendant and suggesting that, instead of submitting a bill for at least
£200,000, the defendant should pay him such sum as it thought appropriate
for the work that he had done.
8. On 4 November 1991 Mr Mokhberi sent a fax in reply to the plaintiff's
letter, denying that the defendant had retained him as its legal adviser,
denying any liability for his fees and making the point that it had considered
the plaintiff to be acting for Irco. The plaintiff says that Mr Mokhberi later
told him that he had taken that stance for political reasons. That is denied
by Mr Mokhberi.
9. In his draft witness statement Mr Jafari says that, on a date which is not
clear from his witness statement but which was either in July or August 1991,
the plaintiff told him that he could no longer represent Irco because there was
a material conflict of interest between Irco and the defendant. Mr Jafari says
that from that point the plaintiff ceased to act for Irco.
10. There is, however, correspondence in September, October and November 1991
between the plaintiff and Rover, as well as with Rover's parent company British
Aerospace, in which the plaintiff purports to be acting on behalf of Irco.
Indeed, there is a letter from Mr Jafari himself, written on behalf of Irco, to
Rover dated 10 September 1991 in which he describes the plaintiff as "our legal
adviser." In the plaintiff's written report of a meeting held with Rover on 11
October 1991, the plaintiff describes himself as "wearing two hats, one as
legal adviser and representative for Bonyad and the other as legal adviser to
Irco International, the consultant to the Rover Group for Iranian affairs." Of
particular importance is a letter dated 20 November 1991 from the plaintiff to
Rover, plainly written on behalf of Irco. It describes how the plaintiff,
together with Mr Jafari and Mr A.A. Mokhberi, had acted as personnel liaison to
facilitate discussions between Rover and the defendant. The letter describes
Irco as Rover's consultants and it refers to an agreement for Rover to pay
Irco's consultancy fees to Irco, but that they would then be transferred to
Lion Group plc, a company of which the plaintiff described himself as being the
secretary and director of legal affairs. The letter refers to the plaintiff
accompanying a Rover party to Iran where he attended the Tehran International
Trade Fair and had several meetings with Mr M.B. Mokhberi and it also describes
work done on behalf of Irco which would have arguably involved a conflict of
interest with the plaintiff acting on behalf of the defendant at the same
time.
11. In his draft witness statement, the plaintiff maintains that Mr M.B.
Mokhberi agreed that the defendant would pay the plaintiff's legal fees
incurred on behalf of Irco on the Rover project as well as its own legal fees.
Indeed, it is said that the defendant was to share Irco's consultancy fees.
12. The plaintiff's pleaded case was based on a bill of costs dated 23 March
1992. The defendant denied receiving such a bill. It was subsequently
accepted by the plaintiff that there was no such document. The judge granted
the plaintiff leave to amend the Statement of Claim to substitute an alleged
bill of costs dated 2 March 1992. The defendant denies receiving that bill of
costs together with its accompanying letter.
13. The writ in this case was issued on 8 October 1992. On 22 December 1992
judgment in default of acknowledgment of service was entered. The defendant
claims that it only became aware of the action when it received a garnishee
order nisi from its bankers. It thereupon applied to set aside the judgment.
On 24 March 1994 a consent order was made setting aside the judgment
conditionally upon security being provided by the defendant. On that date,
directions were given, including a direction for discovery. The defence was
served on 13 April 1994. On 16 June 1994 judgment was formally set aside,
security having been provided by the defendant paying money into court. On 23
January 1995 further and better particulars of the statement of claim were
served, some 7 months after they had been requested. Attempts by the defendant
to obtain from the plaintiff the original of the legal fees letter of 12
September 1991 for forensic examination culminated in an order by Master Foster
dated 7 February 1995 requiring the plaintiff to swear an affidavit explaining
why the original letter had not been produced and ordering that no summons for
directions be issued pending that explanation. The requisite affidavit was
sworn on 16 March 1995 in which the plaintiff stated that he could not locate
the original document and that it might have been lost as a result of a move
between solicitors' offices. He subsequently sought to play down the
importance of the document.
14. Apart from further and better particulars of the defence served in November
1995, nothing of note happened until the plaintiff served notice of intention
to proceed on 8 April 1997. The plaintiff's list of documents was served on 9
May 1997, more than 3 years after required by the discovery direction. In the
latter part of 1997 the limitation period expired. On 4 March 1998 the
plaintiff issued a summons for directions. On 25 March 1998 the defendant
applied to strike out the claim for non-compliance with the provisions of the
Solicitors Remuneration Order 1972 on the ground of failure to endorse the
pleaded bill of costs with the requisite notice on its reverse side. On 22 May
1998 the defendant applied to strike out the claim for want of prosecution.
15. The judge dealt with that application under the second limb of
Birkett v James (1978) AC 297 at p.318 F-G, that is to say he
considered whether there had been inordinate and inexcusable delay on the part
of the plaintiff and whether such delay would give rise to a substantial risk
that it would not be possible to have a fair trial of the issues in the action
or whether it would be such as to be likely to cause, or have caused, serious
prejudice to the defendant.
16. He held that there had been delay beginning at the end of July 1994 and
continuing until the notice of intention to proceed was served on 8 April 1997,
a delay of almost 3 years. That was followed by a further period of delay
between the service of the plaintiff's list of documents on 9 May 1997 and the
issue of the summons for directions on 4 March 1998, a further period of 10
months. Overall, the judge held that there had been a delay of about 3 1/2
years.
17. Before Master Tennant, the defendant had argued that the delay constituted
so wanton a disregard for the rules that the claim should be dismissed.
However, that argument was not pursued in front of the judge because, after the
hearing before Master Tennant, the plaintiff instructed fresh counsel and a
considerable amount of new evidence was put before the Court, including an
assertion by the plaintiff that, during a material part of the period of delay,
he thought he was negotiating with the defendant through Mr Jafari, as an
intermediary, upon terms that nothing be done to pursue the action while
negotiations continued. The defendant denies that, if Mr Jafari so acted, it
was with the defendant's consent.
18. The judge held that, although such negotiations did take place, it had not
been established that they were with the authority of the defendant, nor did he
think that it was excusable to halt proceedings in those circumstances. He
held that the delay of 3 1/2 years was inordinate and inexcusable.
19. The judge identified, as the crucial question, whether the delay had caused
prejudice as described by Lord Diplock in Birkett v James. He
considered the issue of prejudice under two headings - firstly, the question of
the retainer and, secondly, the bill of costs. So far as the bill of costs is
concerned, the judge decided to give the plaintiff leave to amend the
statement of claim by substituting a reference to the bill of costs dated 2
March 1992 for the bill of costs dated 23 March 1992.
20. So far as the question of retainer is concerned, the judge held that the
defendant had failed to show prejudice resulting from the delay. He referred
in his judgment to the defendant's suggestion that the plaintiff's conduct was
equally referrable to him having worked with Mr Jafari and Irco to broker a
deal between Rover and the defendant. He identified the plaintiff and Mr M.B.
Mokhberi as being the two main witnesses to the central issue of whether Mr
Mokhberi had signed the two letters of 12 September 1991, and he referred to
the fact that neither of the documents, both of which are alleged to be
forgeries, are available in their original form.
21. The judge found that the tone of Mr Mokhberi's affidavit was clear and
confident and that Mr Mokhberi did not express any misgivings about his ability
to give evidence after such a long time. Similarly, he described the evidence
of Mr Mahdavi, a legal consultant occasionally employed in the defendant's
legal department, whose evidence is relevant to events after the plaintiff
issued proceedings, as clear and free from misgiving as to failure of
recollection. The judge then dealt with the reference in an affidavit dated 26
May 1998 sworn by Dr Gharaie, the defendant's solicitor, to four potential
witnesses, of whom two had sworn affidavits. Without naming them, he said:-
"Nothing that I have heard or read suggests relevant prejudice in
respect of them".
22. The judge found that the prejudice caused by the loss of the original legal
fees letter and the page 167 letter had occurred before the start of the
culpable delay. He then stated:-
"As to the other circumstances, it is not enough for the Defendant to
invite the court to draw a general inference of prejudice from the fact of
delay and the dependence of the case upon oral evidence when its own key
witnesses make no such assertion."
23. Finally, the judge stated that he did not accept the argument that
prejudice arises from the increased possibility that the plaintiff may seek to
attribute the manifest inconsistencies in his evidence to fading memory.
24. For all those reasons, the judge concluded that the defendant had failed to
show prejudice resulting from the delay.
25. The judge's decision on the issue of prejudice relating to the retainer and
the bill of costs are not seriously challenged by the defendant. The
defendant's appeal on the issue of prejudice is focussed on matters which, in
the main, are said to arise if the plaintiff were to establish that he was
retained by the defendant as their solicitor, but which were not dealt with by
the judge.
26. However, before I come to deal with the issue of prejudice I should first
deal with an abuse of process argument which was raised on behalf of the
defendant. It was based on the deliberate decision of the plaintiff to put his
action on ice, or to "warehouse" the proceedings, from mid-1995 to April 1997
during which time he was negotiating with Mr Jafari in the belief that Mr
Jafari was acting on behalf of the defendant. According to the plaintiff, Mr
Jafari told him on several occasions that the defendant had requested that the
action should not be progressed whilst negotiations were continuing. He
therefore took no further steps to progress the action as he had no reason to
doubt Mr Jafari's word.
27. In submitting on behalf of the defendant that such action by the plaintiff
was capable of amounting to an abuse of process, Miss Andrews relied on the
observations of the court in Arbuthnot Latham Bank Ltd v Trafalgar
Holdings Ltd (1998) 1 WLR 1426 when Lord Woolf MR, under the heading
"The Future", said at p. 1436 F to H:-
"It is already recognised by Grovit v Doctor (1997) 1 WLR 640
that to continue litigation with no intention to bring it to a conclusion can
amount to an abuse of process. We think that the change in culture which is
already taking place will enable courts to recognise for the future more
readily than heretofore, that a wholesale disregard for the rules is an abuse
of process as suggested by Parker LJ in Culbert v Stephen G. Westwell and Co
Ltd (1993) P.I.Q.R. P54.
While an abuse of process can be within the first category identified in
Birkett v James (1978) AC 297 it is also a separate ground for striking
out or staying an action (see Grovit v Doctor at pp 642-643) which does
not depend on the need to show prejudice to the defendant or that a fair trial
is no longer possible. The more ready recognition that wholesale failure, as
such, to comply with the rules justifies an action being struck out, as long as
it is just to do so, will avoid much time and expense being incurred in
investigation of questions of prejudice, and allow the striking out of actions
whether or not the limitation period has expired."
28. Lord Woolf then dealt with the "warehousing" of proceedings at p. 1437 in
the following way:-
"It has been the unofficial practice of banks and others who are faced
with a multitude of debtors from whom they are seeking to recover moneys to
initiate a great many actions and then select which of those proceedings to
pursue at any particular time. This practise should cease in so far as it is
taking place without the consent of the court or other parties. If there is
good reason for doing so the court can make the appropriate directions.
Whereas hitherto it may have been arguable that for a party on its own
initiative to, in effect, "warehouse" proceedings until it is convenient to
pursue them does not constitute an abuse of process, when hereafter this
happens this will no longer be the practice. It leads to stale proceedings
which bring the litigation process into disrespect. As case flow management is
introduced, it will involve the courts becoming involved in order to find out
why the action is not being progressed. If the claimant has for the time being
no intention to pursue the action this will be a wasted effort. Finding out
the reasons for the lack of activity in proceedings will unnecessarily take up
the time of the court. If, subject to any directions of the court, proceedings
are not intended to be pursued in accordance with the rules they should not be
brought. If they are brought and they are not to be advanced, consideration
should be given to their discontinuance or authority of the court obtained for
their being adjourned generally. The courts exist to assist parties to resolve
disputes and they should not be used by litigants for other purposes. This new
approach will not be applied retrospectively to delays which have already
occurred but it will apply to future delay."
29. In Choraria v Sethia (1998) CLC 625 the Court of
Appeal applied the first of those two observations that I have quoted and held
that the court was declaring the law as it then was and as it is now.
30. Reliance was also placed on Co-operative Retail Services v Guardian
Assurance Plc (unreported, 28 July 1999) where May LJ indicated that a
deliberate decision taken by the plaintiff to "warehouse" a claim for over 4
years pending the outcome of discussions between the parties relating to the
settlement of a related matter in anticipation of reaching a global settlement
was "very arguably" an abuse of process. In fact, the point did not arise for
decision in that case because it was not argued before the judge in the court
below and the case, which involved a delay of 5 years and 5 months, was decided
under the second limb of Birkett v James. Miss Andrews, however,
relies on that case as showing that it is possible to categorise a bona fide
but deliberate decision by a party to put the action on ice whilst "without
prejudice" negotiations with the other side are carried on as an abuse of
process.
31. In the present case Miss Andrews points out that the plaintiff made no
contact with the defendant during his negotiations with Mr Jafari, although the
defendant had solicitors acting for it. She submitted that, as a solicitor
himself, he should have known that he was taking a risk and that he should
therefore bear the consequences.
32. For my own part, I am not persuaded that the conduct of the plaintiff was
sufficiently serious as to amount to an abuse of process. The length of time
for which the negotiations were carried on by the plaintiff without progressing
the action from mid-1995 to April 1997 was less than half the time involved in
the case of Cooperative Retail Services Ltd v Guardian Assurance
plc, and the overall period of inordinate and inexcusable delay in that
case was 5 years and 5 months compared to the period of 3 1/2 years in this
case. Furthermore, it is implicit in the findings of the judge that the
plaintiff believed that Mr Jafari was acting on behalf of the defendant, albeit
that he can quite properly be criticised for failing to check the authenticity
of Mr Jafari's authority to negotiate, either with the defendant or with the
defendant's solicitor. Looking at the matter in the round, however, I do not
consider that, as a matter of fact and degree, this is a case where it can be
said that the plaintiff's conduct was such as to amount to an abuse of process
so that it should be struck out without prejudice having to be shown.
33. It follows that this appeal must be decided under the second limb of
Birkett v Jones - that is to say, whether the inordinate and
inexcusable delay on the part of the plaintiff would give rise to a substantial
risk that it would not be possible to have a fair trial of the issues in the
action or whether it would be such as to be likely to cause, or have caused,
serious prejudice to the defendant. In applying that test it is necessary to
bear in mind the principles and guidelines mentioned by Neill LJ in Trill
v Sacher (1993) 1 WLR 1379 at p. 1397H to p. 1400A, as well as the
dictum of Peter Gibson LJ in Shtun v Zalejska (1996) 1 WLR 1270
when he said at p 1285B:-
"In my judgment, in order to determine whether a defendant has suffered
the necessary prejudice when it is in the form of the impairment of witnesses'
recollection as a result of inordinate and inexcusable post-writ delay, the
court must examine with care all the circumstances of the case, including both
the affidavit evidence as well as the issues disclosed by the pleadings. It is
not, in my judgment, essential in every case that there should be evidence of
particular respects in which potential witnesses' memories have faded, still
less that it need be shown that such fading of memories occurred in a
particular period."
34. The defendant's case on the issue of prejudice is that the judge focussed
on the question of prejudice in relation to the issue of the retainer and
ignored the prejudice alleged by the defendant to arise from determination of
the precise nature and extent of the plaintiff's involvement in the Rover
project - in particular, what work the plaintiff was doing on the project on
behalf of the defendant, what work he was doing on the project on behalf of
Irco, the nature of that work and which of them was liable to pay for it and
whether the defendant knew of , and consented to, the plaintiff acting on
behalf of Irco as well as on its own behalf.
35. It was submitted that those kinds of issues could not be determined on the
basis of the contemporaneous documentation which is confusing and inconclusive
and some of which is self- serving in that it emanates from the plaintiff. The
case would, it was said, depend largely on oral evidence about events occurring
in late 1991, some 6 1/2 years after the summons to strike it out for want of
prosecution and now some 8 years ago, there having been an inordinate and
inexcusable delay by the plaintiff for about 3 1/2 years between the end of
July 1994 and March 1998. It was submitted that it was impossible to
reconstruct now what happened and that there would be serious prejudice to the
defendant relating to those issues which were simply not addressed by the
judge.
36. Insofar as the judge had found no prejudice in relation to the four
witnesses mentioned in Dr Gharaie's affidavit dated 26 May 1998, the finding,
it was said, only related to the issue of the retainer. The judge had made no
findings on prejudice relating to those witnesses on the other issues, nor had
he dealt with the question of prejudice relating to potential witnesses from
Rover dealing with those issues.
37. The four witnesses referred to in Dr Gharaie's affidavit were Mr Mohammedi
and Mr Zarrebi, who had become untraceable since February 1996, and Mr Sobhani
and Mr Mossadeghi who had sworn affidavits that their recollection of events
had now dimmed. Mr Mohammedi was a senior negotiator for the defendant who was
part of a team of delegates on the Rover project. Mr Zarrabi was a translator
and interpreter for Mr Rafigdhoost, the defendant's president. Mr Sobhani took
over from Mr M.B. Mokhberi in March 1992, and Mr Mossadeghi was Mr M.B.
Mokhberi's deputy who deposed to having been involved in the commercial
negotiations in 1991 and having attended at least a couple of meetings between
Rover and the defendant at which the brokers, including the plaintiff, were
present. There is a letter from the plaintiff to Mr Mossadeghi dated 16
October 1991 which refers to a meeting with him the previous week. Mr
Mossadeghi also attended a dinner on 8 October 1991 given during Mr
Rafigdhoost's visit to this country to see some Rover factories.
38. Miss Andrews submitted on behalf of the defendant that the unavailability
of the two witnesses and the dimmed memories of the other two witnesses would
cause the defendant substantial prejudice in trying to deal with, inter alia,
what work the plaintiff was doing on whose behalf at any relevant time. She
also submitted that potential witnesses from Rover might be able to deal with
those issues as well as the question of a potential conflict of interest
arising out of the plaintiff acting both for Irco and the defendant.
39. Miss Andrews also submitted that the judge was wrong in holding that it was
not sufficient for the defendant to invite the court to draw a general
inference of prejudice from the fact of delay when its own key witnesses made
no such assertion. She relied on the case of Shtun v Zaleyska
referred to earlier.
40. Finally, it was submitted that the judge was wrong to reject the argument
that prejudice could arise from the increased possibility of the plaintiff
attributing the manifest inconsistencies in his evidence to fading memory.
Reliance was placed on the words of Neill LJ in the case of Slade v Adco
Ltd (The Times, 7 December 1995) when he said:-
"Account must also be taken of the fact that delay may create
difficulties for a defendant when he seeks to test by way of cross-examination
the reliability of the plaintiff and his witnesses."
41. For all those reasons, and others, it was submitted on behalf of the
defendant that the judge was wrong to have exercised his discretion to refuse
to strike out the plaintiff's claim.
42. The question for this court to decide is whether the inordinate and
inexcusable delay of about 3 1/2 years will give rise to a substantial risk
that it is not possible to have a fair trial of the issues in the action or is
likely to cause, or have caused, serious prejudice to the defendant. In
addressing that question it is necessary to bear in mind that this court's
function is primarily a reviewing function and that it should only interfere if
the judge has erred on principle (see Trill v Sacher at p.
139H-1400A).
43. It is right to say that the judge in this case concentrated on the retainer
issue, as well as the bill of costs issue, when dealing with the question of
prejudice. His decision on those issues has not been seriously challenged. He
did not, however, expressly deal with the question of prejudice arising from
the other consequential issues identified by Miss Andrews on behalf of the
defendant. In a sense, that is not surprising because the retainer issue is
the fundamental issue in this case. The evidence of the main witnesses
relating to the letters of 12 September 1991 on that issue will be crucial as
to the credibility of the respective parties.
44. It is, however, also necessary to consider the question of prejudice in
relation to those other issues that have been identified. Having heard the
submissions on both sides, and having considered the evidence contained in the
documents, it appears that those consequential issues are likely to include the
following:-
a) to what extent was the plaintiff acting for Irco with the defendant's
knowledge? b) to what extent did the defendant agree to be responsible for
fees incurred by the plaintiff on Irco's behalf?
c) what work did the plaintiff actually do, whether on behalf of the
defendant or Irco?
d) what actual work, if any, was done by the plaintiff for the defendant as
distinct from work done for Irco?
45. So far as issue (a) is concerned, it would appear from Dr Gharaie's
affidavit of 28 September 1998 that it is unlikely to be disputed that the
defendant knew that the plaintiff was acting for Irco. Dr Gharaie makes it
clear that the defendant knew that the plaintiff was a member of what he calls
the broker's team, that is to say Irco, and it is accepted that the documents
show that they were negotiating with Rover.
46. So far as issue (b) is concerned, the defendant disputes any agreement to
be responsible for fees incurred by the plaintiff on Irco's behalf. It is,
however, clear from the plaintiff's draft written statement that, apart from
his conversations with Mr Jafari, the plaintiff's case on this aspect turns
very much on conversations which the plaintiff said he had, both on the
telephone and in person, with Mr M.B. Mokhberi in July and August 1991. As the
judge remarked, the tone of Mr M.B. Mokhberi's affidavit evidence dealing with
various matters is clear and confident, and I do not consider that he is likely
to have any difficulty in dealing with this aspect of the matter.
47. Issues (c) and (d) are both relevant to an assessment of the plaintiff's
costs if he were to succeed in establishing liability at trial. The
determination of both those issues is, however, potentially capable of giving
rise to prejudice resulting from the delay.
48. Sofar as issue (c) is concerned, I would have thought that it should be
possible to identify all the work done by the plaintiff, whether on behalf of
the defendant or on behalf of Irco, and to cost it, by using the very
considerable documentation that exists without there being any real prejudice
being caused to the defendant.
49. So far as (d) is concerned, it is accepted by Mr Tager QC, on behalf of the
plaintiff, that the plaintiff cannot succeed in his claim to any sum if the
defendant did not agree to him acting for Irco. If, however, it were held that
the defendant did agree to the plaintiff acting for Irco but did not agree to
be responsible for his fees when so acting, the question of identifying what
work was done for Irco arises. It is to be noted, however, that during his
submissions Mr Tager stated that the plaintiff was not claiming an
apportionment of the sum claimed; he was either entitled to all of it or none
of it. Indeed, Mr Tager stressed that the bill of costs dated 2 March 1992
expressly related to fees for acting on the defendant's behalf. It may be,
therefore, that the question of apportionment simply does not arise. If,
however, it does arise, it is necessary to consider the extent, if at all, to
which witnesses may have been able to assist on that issue.
50. Whilst it is possible that Mr Mohammedi may have been able to assist on
this issue, he was part of a team and there is no evidence that he actually had
any dealings with the plaintiff or that he may have been able to corroborate
any particular aspect of the evidence of another member of the team. It is, as
Mr Tager said, pure speculation as to whether or not he might have been able to
assist on this issue.
51. Mr Zarrabi could, at best, only be a corroborative witness for Mr
Rafiqdhoost, but it is noteworthy that there is no draft witness statement from
Mr Rafiqdhoost. There is, therefore, no evidence from Mr Rafiqdhoost that Mr
Zarrabi would have been able to assist on this particular issue.
52. Mr Sobhani only took over from Mr M.B. Mokhberi in March 1992. He
therefore had no first hand knowledge of the role of the plaintiff during the
relevant period between July and December 1991. It is accepted by Miss Andrews
in her skeleton argument that Mr Sobhani is of less importance.
53. It is possible that Mr Mossadeghi, Mr M.B. Mokhberi's deputy, may have been
able to give limited assistance insofar as he attended a couple of meetings
between Rover and the defendant at which the plaintiff was present, but
comparison of the correspondence between the plaintiff and Mr M.B. Mokhberi
with a letter dated 16 October 1991 from the plaintiff to Mr Mossadeghi
indicates that, although he attended the dinner on 8 October 1991, he was
unlikely to have had any real involvement in the plaintiff's activities with
Rover. Indeed, it is noteworthy that Mr M.B. Mokhberi does not indicate in his
affidavits whether Mr Mossadeghi could have given useful evidence on any of
these issues.
54. So far as witnesses from Rover are concerned, we were told that the
defendant had tried to obtain assistance from Rover in 1994, but
unsuccessfully. Similarly, the plaintiff wrote to potential witnesses at Rover
in October 1995 requesting witness statements relating to the plaintiff's
involvement in the negotiations between Rover and the defendant, but, with the
exception of Mr King, they refused to provide any assistance to the plaintiff.
Mr King, who is the project manager for business development with Rover
International, has made a draft witness statement which is consistent with the
plaintiff's account of his involvement with the defendant. As a matter of
practicality, therefore, it does not appear that the defendant is likely to
gain any material assistance from Rover witnesses on these issues.
55. It follows, therefore, from an analysis of the likely relevant issues and
the extent to which there may be witnesses who could assist on those issues,
that I am not persuaded that any significant prejudice would be caused to the
defendant arising from the delay if this action were to proceed to trial.
There is a great deal of documentation in this case which can assist in
refreshing memories, and the plaintiff's letter of 20 November 1991 provides
valuable material with which the defendant can pursue its case.
56. Whilst, therefore, the judge only expressed his conclusions on the question
of prejudice in relation to the two issues of the retainer and the bill of
costs, I am satisfied that, if he had expressed his conclusions on the
consequential issues that I have addressed in this judgment, he would have
reached the same conclusion as he did in relation to those two issues.
57. My conclusion is that, despite the able and persuasive arguments addressed
to the court by Miss Andrews, the defendant has not shown that the plaintiff's
inordinate and inexcusable delay will give rise to a substantial risk that it
is not possible to have a fair trial of the issues in the action or is likely
to cause, or have caused, serious prejudice to the defendant. In those
circumstances, for my part, I would dismiss this appeal.
Lord Justice Mance: I agree.
Order;
(1) The Appellant's appeal be dismissed and the order of the Honourable Mr
Nicholas Chambers QC (sitting as a Deputy Judge of the High Court in Chambers)
dated 6th November 1998 be affirmed.
(2) The Appellant do pay the Respondent's costs of this appeal, such costs
to be detailed assessment forthwith If not agreed.
(3) The Appellant's application for permission to present a petition of
appeal to the House of Lords be refused.
(4) The Appellant's application for permission for a stay pending the
application appeal to the House of Lords be refused.
(Order does not form part of the approved judgment)
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