Simms v Carr, Court of Appeal - Chancery Division, February 07, 2008, [2008] EWHC 1030 (Ch)

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Simms v Carr, Court of Appeal - Chancery Division, February 07, 2008, [2008] EWHC 1030 (Ch)

Case No: CH/2007/APP/481

Neutral Citation Number: [2008] EWHC 1030 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 7th February 2008

BEFORE:

THE HONOURABLE MR JUSTICE MORGAN

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BETWEEN:

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Wordwave International, a Merrill Communications Company

PO Box 1336, Kingston-Upon-Thames KT1 1QT

Tel No: 020 8974 7305 Fax No: 020 8974 7301

Email Address: Tape@merrillcorp.com

(Official Shorthand Writers to the Court)

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Mr Simon Monty QC (and at judgment Mr Paul Parker) (Instructed by Ince & CO) appeared on behalf of the Claimant

Mr Robert Lazerus (at judgment) appeared on behalf of the Defendant

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JudgmentMR JUSTICE MORGAN:

1. This is an appeal by the eighth Defendant, Mr Simms, against part of an order made by Master Bragge on 16 July 2007. The relevant part of that order revoked an earlier order also made by Master Bragge, being an order for security for costs made on 16 June 2006. The order for security for costs was to the effect that Mr Carr, the Claimant, should provide Mr Simms with security for Mr Simms's costs of defending these proceedings, the required security being in the sum of £120,000. Mr Simms now appeals the order of 16 July 2007, principally on the ground that the Master had no power under the Civil Procedure Rules to revoke his own earlier order. If the appeal is allowed the result will be that, the earlier order of 16 June 2006 will stand un-revoked.

2. The dispute between these parties has a very long history. It will be necessary to set out the relevant parts of that history. This appeal does raise an important point as to the circumstances in which an earlier interlocutory order can be revoked without there being an appeal to an appellate court against that order.

3. I will begin by referring to previous proceedings between Mr Carr that is, the Claimant, and Mr Simms as one of several Defendants. Those earlier proceedings went to trial before Blackburne J and he gave his judgment on 19th December 2001. I ought to read one or two short extracts from the judgment of Blackburne J. The Learned Judge stated that the Claimant, Malcolm Carr sued to recover, with interest, $4m from the Defendant firm of solicitors, Messrs Bower Cotton. That was the amount of the fund which was lost in May 1998 by reason of the fraud of certain third parties. The claim was brought on alternative grounds. Blackburne J summarised the matter before him in these terms:

``The gist of the claim is that, in breach of an agreement (which I shall call ``the investment agreement'') entered into on 13 May 1998 between Mr Carr and a Bahamian company called Kelci Management Consultants Limited, under which Bower Cotton was to protect the $4 million fund belonging to Mr Carr and others, Bower Cotton, acting by a Mr Paul Simms, wrongly allowed the fund to be transferred out of client account to an account of an entity known as Kelly Pahl & Associates Limited at UniBank in Copenhagen whereby it was lost. There is a separate claim that Bower Cotton are in breach of the investm...

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