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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Grimm v Newman [2002] EWCA Civ 1423 (2 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1423.html Cite as: [2002] EWCA Civ 1423

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(Application to break fixture)

		Royal Courts of Justice Strand London, WC2 Wednesday, 2 October 2002

1. THE VICE-CHANCELLOR: This is an application by the defendants for the vacation of the date of their appeal which is due to be heard on Tuesday, Wednesday and Thursday of next week, that is to say 8^th, 9^th, 10^th October. The action in question relates to events which occurred in 1991 where, in summary, the claimant, Mr Grim, obtained advice from the defendants, Mr Newman and Chancery Velacott as to his ability, by giving his offshore assets to his intended wife, to obtain the remission of assets into the United Kingdom without paying the tax on them that would otherwise be paid. He obtained advice, in the light of which he carried out a scheme which did not have the intended result, and, as I understand it, put very broadly, he not only had to pay the tax he sought to avoid, but he was subjected to a lengthy special Revenue investigation as well.
2. The action came before Etherton J and he gave judgment on 1st November 2001 for the claimant for a sum of damages in total amounting to approximately £200,000, made up of damages, interest and one or two other items.
3. The defendants seek to appeal on a number of grounds. They say, first of all, the defendants' advice was correct; secondly, the alternative scheme relied on by the claimant would not have worked either. They object to the late introduction of new material at the trial and they have a further point as to costs.
4. At the trial the defendants were represented by leading counsel, Mr Peter Trevitt, and Mr Michael Jefferis. The defendants were represented by leading and junior counsel. The unfortunate matter which has generated this application is that on Monday, 30th September, leading counsel, for the applicant found that, for reasons which were originally analysed as gout, but I believe is now described as osteoarthritis, he was unable to walk and was in acute pain and evidently unable to prepare the case in order to have the matter properly dealt with next week.
5. In those circumstances the application is made to me by the claimant for the dates to be vacated, so that, to do justice to their case, they can instruct leading counsel experienced in the tax field to explain to the court the intricacies of the tax involving overseas assets and why the scheme might or might not have worked and other matters of detail. It is not suggested, as I understand it, that the new leading counsel has to conduct the respondent's case on the appeal altogether, because Mr Jefferis is perfectly capable of doing that himself, having been involved below and also in the light of his own experience.
6. As against that, it is said for the other side that the finding against the defendant is one of acute personal and professional concern because he is an expert in the field in which the advice was given, and as long as this finding remains against him it causes him damage beyond what money can compensate. As against that, there is the fact that if new leading counsel has to be instructed on behalf of the respondent, then the sums of money payable to the earlier leading counsel will have been wasted.
7. The problem is that no sufficient steps were taken when leading counsel's problems emerged to obtain an alternative. Even now there are six days to go before the hearing of the appeal is due to commence, and for my part, having had a look at the bundles supplied by the claimants and the defendants, and had a quick look at the skeleton arguments, I cannot see why competent and experienced leading or junior counsel in the field could not, between now and then, get up more than sufficiently the issues involved so as to assist the court next week with the dates for the hearing of the appeal as they now are. Sympathising as we all do with the affliction that has befallen leading counsel, I cannot see, doing justice to his clients, which of course is essential, that it is necessary that the dates fixed for next week, now for nearly a year, should be vacated. For those reasons I dismiss the application.
8. MR ROSS: If your Lordship would be kind of enough to dismiss that with costs, that matter to be left over to detailed assessment at the end of the appeal hearing if that should be necessary.
9. THE VICE-CHANCELLOR: Legal aid.
10. MR ROSS: No, detailed assessment at the end of the appeal hearing. It will take place at that stage. I would not dream of moving on the costs issue.
11. THE VICE-CHANCELLOR: What do you say about costs, Mr Jefferis?
12. MR JEFFERIS: This is an act of God. It is not that we have deliberately tried to muck the court about. The presence of two counsel today is delightful, but Mr Tallon has not actually addressed your Lordship. In my submission it should be no order as to costs. They should lie where they fall; it is an unfortunate incident.
13. THE VICE-CHANCELLOR: I think, Mr Jefferis, I shall make an order for costs against your client, but I will not allow the costs of leading counsels' attendance. It could perfectly well have been done by junior.
14. MR JEFFERIS: I am obliged.
ORDER: Application dismissed.