Neutral Citation Number: [2014] EWHC 3397 (QB)
Case No: 2014-183  

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
LONDON MERCANTILE COURT
The Rolls Building
Fetter Lane
London EC4A 1NL

Date: 16 July 2014

BEFORE:

HIS HONOUR JUDGE MACKIE
(SITTING AS A JUDGE OF THE HIGH COURT)

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BETWEEN:

DUNFERMLINE BUILDING SOCIETY
Claimant
- and -

GHANA COMMERCIAL FINANCE LIMITED
AND OTHERS

Defendant

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MS LAURA TWEEDY (instructed by Eversheds) appeared on behalf of the Claimant

MR GOPEE appeared In Person

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Judgment
(Please note that due to the poor quality of digital recording, it has not been possible to produce a high quality transcript in this case.)

JUDGE MACKIE:  

1.	This is an application by the claimant, Dunfermline Building Society, for an order that Mr Gopee do personally pay the costs of an application heard by me on 11 April this year.  At that hearing counsel represented the claimant and Mr Gopee (as he almost always does) some of the companies with whom he is connected, this time Ghana Commercial Finance Limited and Pangold Estate Limited.

2.	Having heard from both sides, I concluded that the court did not strictly have jurisdiction to determine the application brought by the defendants, Ghana and Pangold, but I thought it right to consider the application on its merits.  I considered the application and reached the view that on its merits it was quite hopeless and that was why an order came to be made.  I concluded that the application had been totally without merit, both procedurally and on the facts.  I declined, however, to make a civil restraining order on that day.  I also declined to make any order against Mr Gopee personally because I thought it right that he have an opportunity to consider and to be heard on a separate occasion about that issue and that he should have an opportunity to receive and to file evidence.  On that occasion I then made an order that Mr Gopee be named as third defendant.  I do not repeat the grounds upon which I refused the application and concluded that it was wholly without merit because those can be found in a transcript of what I said on that occasion.  The substance of the objections of Dunfermline Building Society, which I upheld, are summarised in the claimant’s skeleton argument presented for that hearing.  

3.	Since that time there have been two witness statements served on behalf of the claimant by Mr Hugh Powell, an associate at the claimant’s solicitors.  In the first witness Mr Powell summarises the stage at which this action has reached.  He recognises that claims  for costs by against a non-party are exceptional.  He says that in this case the application was hopeless and doomed to failure.  He points to the fact that the third defendant, Mr Gopee, and a Mauritius company are the shareholders of the first defendant and suggests that the likelihood of anyone in Mauritius having anything to do with the case is remote.  He also points to the fact that the third defendant is the sole director and has represented the first and second defendants throughout and has filed witness statements on their behalf.  He suggests that the third defendant could have no bona fide belief that the other defendants had an arguable case, or that it was in the interest of either company to advance the application.  

4.	He points to the fact that Mr Gopee could not properly have been a party to the action itself.  He says that Mr Gopee has been given adequate notice of the proceedings.  He points to the fact that this is a summary proceeding and there was no reason why the judge who dealt with the application should not also deal with the question of costs.  I bear in mind the other points he makes.  

5.	Mr Gopee has not filed any evidence in response to the application, although he has as usual made articulate submissions on his own behalf.  

6.	Before determining the application I remind myself that its origin lies in section 51 of the Senior Courts Act.  The court has a discretion.  The well-known guidelines in Symphony Group are set out in the White Book at CPR 46.2(1).  They are guidelines, not rules.

7.	An order for costs by a non-party will always be exceptional and should be approached with caution by a court on any application.  However, it is important to be clear what “exceptional” means in that context.  As Cooke J put in the recent Deutsche Bank case [2014] EWHC 2073 (Comm):
“Exceptional in this context means no more than outside the ordinary run of cases ...” 

8.	Mr Gopee says that it is not for the court to make the order sought.  He refers to the somewhat unusual circumstances by which this case came to the Mercantile Court and suggests that it is not fair to conduct the analysis as though he had a free choice about where the claim should be heard.  He makes submissions about the merits of the original application.  It seems to me that, on the present application, they are irrelevant.  He says that there is a distinction between himself and the two defendants.  He says that no impropriety has been alleged and the benefit of any litigation will ensure to the benefit of the shareholders.  He suggested these two companies paid their taxes.  When I pressed Mr Gopee about that he qualified his remarks.  He also argued that there was  clear water between him and the company.

9.	In my judgment, Mr Gopee is correct to this extent; the reason this case came before the court was because of the orders I have made not through Mr Gopee's choice.  He cannot be criticised for going to the wrong court.

10.	Against that, the claim was hopeless.  Mr Gopee is a hugely experienced litigant-in-person (by which expression I mean someone who actively represents the companies with which he is closely connected).  He represents them carrying out to the full both as it were the barrister and the solicitor role.  He must have known from past experience that his prospects of success were virtually non-existent.  A more important consideration is this.  Mr Gopee is inextricably bound up with the fortunes of these companies.  It is impossible for me to ignore the fact that Mr Gopee is connected with a considerable number of companies in all of which he seems to play much the same role.  He is very experienced in litigation in this area of the law.  He is very experienced in procedural matters.  He knew what was going to happen.

11.	The defendant companies have and had no intention, when they lost, of paying the claimant's costs.  They have not done so so far.  Mr Gopee knows that the companies face no real prejudice unless someone has the energy to seek to wind them up.  Mr Gopee irresponsibly caused the companies to defend and the claimants have incurred irrecoverable costs as a result.

12.	The application would never have been brought if the defendants had not concluded that there was no risk to them and Mr Gopee had reached the same view.  There is no effective distinction between the companies and Mr Gopee.  Mr Gopee takes decisions, he knows the consequences.  

13.	The circumstances are exceptional in the sense identified by Cooke J when one looks at the background to this case and the particular role assumed by Mr Gopee in the prosecution of the application on behalf of the defendants.  In all the circumstances I consider it just to make the order sought and will do so.