J90PE914 and K00LU633 - [2025] EWHC 2076 (KB)

While I understand the frustrations of the first defendant with respect to the way in which this litigation has been conducted – as if the court had nothing else to do than deal with any of the concerns that Ms Saunders may have – I do not consider that the court is in a position at this time to deal with the more general issues as to the need for written submissions and the reasons as to why witness evidence, particularly that of Ms Saunders, took so long as there are nuanced arguments on both sides. In my judgment, those matters can only properly be dealt with at the end of the trial.

The one area in which I consider the court can properly determine costs at this stage of the proceedings, and indeed should deal with costs now rather than at the end of the proceedings and after judgment has been given, are the delays caused that are clearly attributable to conduct. There were, for example, a number of occasions when it was necessary to halt the progress of the case in order to lift the embargo to talk to legal representatives when giving evidence, in order that Ms Saunders could give instructions, because her answers on oath were potentially causing professional embarrassment to her KC. That was highly unusual and not something that has happened in any other civil case I have heard as a judge or previously in the years I appeared as Counsel. It was not a singular incident.

I have considered with care the written submissions on this issue from both the first defendant and the claimants in response. The underlying submission on the part of the first defendant is that the claimants appear to have unlimited resources whereas the first defendant, which operates for the purpose of managing the leasehold of the Abbotsley Country Homes land and lodges, has very limited resources and is reliant upon the loans of the wealthier lodge owners to be able to continue to defend the claims with legal representation.

It is clear from the evidence that I have heard, that Ms Saunders is an experienced litigator and that she is very well aware of her ability to run a case at great cost, instructing senior counsel, with the idea that, if successful she will be able to recover those costs against the party she has decided to litigate against. I have expressed my concern during the course of this trial that the court is being used as a weapon to bully the defendants into behaving in the way that she wishes them to behave. I have been assured by leading counsel that is not the case and I accept that there are legal and factual issues between the second claimant and all the defendants that need to be resolved.

The individual defendants in this case are in no financial position to pay for their own legal representation through the proceedings and many gave evidence of how this litigation has both locked them into not being able to sell their property and has taken all their savings – at least one described being on their knees. The first defendant is struggling to be able to pay for ongoing legal representation and is facing First Tier Tribunal proceedings with respect to whether the service charge can be used to fund any part of the litigation. On the other hand, the claimants have not baulked at paying very significant legal fees of both leading counsel, junior counsel and a paralegal on a noting brief, even though the cost budgeting clearly provides only for one counsel with Ms Saunders deciding not to instruct a solicitor. The first claimant is a significant land owner and the second claimant is the sole director and shareholder of the first claimant. At least a significant part of the land owned by the first claimant is currently subject to a promotion (or option) agreement with a significant local house builder. The land falls very close to the development of train and road transport links between Oxford and Cambridge and has been an area of recent significant housing development. In addition the second claimant is the owner of a now unused hotel and sports complex, which appears ripe for development. There is an apparent and clear significant financial inequality of arms and, while I do not have bank statements or other evidence before me, all the evidence available, and Ms Saunders’ conduct, indicates that she does not struggle with paying what must be very high legal costs. The court has no role in rebalancing financial inequalities.