Simpson & Ors (t/a Harrow Solicitors and Advocates) v Godson & Ors

Permission to appeal requires a real prospect of success or some other compelling reason. On summary judgment, the court may decide a claim where the defence has no reality when tested against the evidence. Unsupported assertions, collateral attacks and disclosure that cannot establish an arguable case do not justify a trial. There is no general right to disclosure at the stage when summary judgment is normally sought. A costs order after partial success must reflect the issues actually won and lost. Where summary judgment succeeds on one claim against a defendant but fails on a separate claim, an order for all application costs is too broad. The court may apportion costs and make the balance costs in the case.

Harrow Solicitors obtained summary judgment in the High Court against three applicants in claims arising from alleged thefts from the firm. His Honour Judge Seymour QC gave judgment against Mr Godson, Mrs Thirumahal and Mr Gopalan, with differing costs orders, and dismissed counterclaims by Mr Godson and Mr Gopalan: [2012] EWHC 2299 (QB).

The Court of Appeal heard renewed applications for permission. Mr Godson challenged the summary judgment, Mr Gopalan renewed his application but did not appear, and Mrs Thirumahal challenged the costs order only. The central issues were whether the proposed appeals had a real prospect of success or another compelling basis, and whether the costs order properly reflected the claims on which Mrs Thirumahal had succeeded or failed.

The Court of Appeal dismissed Mr Godson’s renewed application for permission to appeal, dismissed Mr Gopalan’s application, and granted Mrs Thirumahal permission to appeal and allowed her appeal to the extent indicated.

1. Permission and summary judgment. The applicable permission test was whether the proposed appeal had a real prospect of success or whether there was some other compelling reason for it to be heard. Mr Godson admitted forging cheques and did not challenge the detailed schedules or underlying documents relied upon by Harrow Solicitors. His only viable defence was that the money had been returned to the managing partner or other partners, but he produced no credible evidence supporting it. The collateral allegations against the firm did not assist him.
2. The court applied the absence-of-reality approach referred to by Lord Hobhouse in Three Rivers District Council v Bank of England (No 3) [2003] AC 1. There was no general right to disclosure at the summary-judgment stage. Disclosure of the claimants’ bank statements would not have helped Mr Godson establish an arguable case that he had withdrawn and repaid sufficient cash. His defence therefore had no real prospect of success, and there was no other compelling reason for an appeal.
3. Mrs Thirumahal’s costs. The claim against her comprised a claim for money paid into her account and a separate knowing-assistance claim. She had accepted liability for the former, but the claimants had failed to obtain summary judgment on the latter because knowing assistance remained to be established. The order requiring her to pay the costs of the application was equivocal and, if intended to cover all costs against all defendants or all issues, too broad. She was ordered to pay 25% of the costs of the application against her. The balance was costs in the case, assessed on the standard basis, and the order was not enforceable without permission under section 11 of the Access to Justice Act 1999.

1. Court of Appeal (Civil Division): Renewed applications for permission were dismissed for Mr Godson and Mr Gopalan. Mrs Thirumahal was granted permission and her appeal was allowed in part.
2. High Court, Queen’s Bench Division: His Honour Judge Seymour QC granted summary judgment against the three applicants and made the consequential costs orders: [2012] EWHC 2299 (QB).