Oyston & Anor v Rubin & Ano

The court may vary its own case-management order where there has been a material change of circumstances. In deciding whether a Part 8 claim should be heard by a Master or a High Court judge, the court must make a practical allocation decision. Relevant considerations include delay, complexity, the nature of the issues, judicial expertise and the judge’s existing knowledge of the proceedings. A Master’s established expertise in accounts does not create a general rule that all such claims must be heard by a Master. The proper construction of a court order requires consideration of its natural and ordinary meaning together with its purpose, provisions, relevant background and common sense.

The claimants challenged the receivers’ final account by a Part 8 claim, seeking surcharge and falsification. A Deputy Master had listed the claim for disposal before a Master. The receivers later issued an application in the related unfair-prejudice proceedings seeking declarations concerning their fees and expenses and asking for the application to be heard by Mr Justice Marcus Smith, who had made the receivership orders and dealt extensively with its enforcement.

The issue was whether the Deputy Master’s allocation order should be revisited and, if so, whether the Part 8 claim and declaration application should be dealt with by the Master or by Mr Justice Marcus Smith.

1. The order listing the claim before a Master was varied. The claim was directed to be further case-managed and tried or disposed of by Mr Justice Marcus Smith.

2. Under CPR 3.1(7), the court may vary its own order where there has been a material change of circumstances. The issue of judicial allocation is highly practical, and the judge’s availability without delay, the receivers’ availability of alternative counsel and the issue of the related declaration application were sufficient changes.

3. The petition proceedings continued for limited purposes after settlement. The receivers’ lien, fees and liberty to apply remained relevant, and the declaration application properly arose from the receivership orders. The application was not an abuse of process, collateral attack or irregular procedure.

4. There is no general rule that Part 8 claims or accounts must be determined by Masters. The claim initially goes to a Master, who decides the appropriate level of judge. Although Masters have expertise in accounts, the present claim involved significant issues of principle, construction of the receivership order and assessment of fees in the context of a complex receivership.

5. The judge who appointed the receivers, received their reports and dealt with the enforcement proceedings was best placed to determine the meaning and effect of his order and the reasonableness and proportionality of the receivers’ fees. This would make more effective use of judicial resources. Schumacher v Clarke [2019] EWHC 1031 (Ch) was distinguishable because the decisive feature of existing judicial knowledge was absent there.

6. In construing a court order, natural and ordinary meaning is not the sole consideration. The court must consider the document’s purpose, other provisions, relevant background and common sense, applying the principles stated in Marley v Rawlings [2014] UKSC 2 and Rainy Sky v Kookmin Bank [2011] UKSC 50.

7. The claimants were the unsuccessful parties on a contested issue and were ordered to pay the receivers’ costs. Permission to appeal was refused; the decision was a case-management decision not readily appealable.