KB-2023-003510 - [2025] EWHC 1755 (KB)

Discussion and conclusions

The costs orders contained in the July 2024 Order were made almost exactly 12 months ago, they have been upheld by the Court of Appeal, and even making allowance for the time occupied by the process of seeking permission to appeal from the Court of Appeal have been confirmed as regards £66,500 since 10 October 2024 and as regards a further £221,500 since 9 January 2025. The starting point is that they ought to be complied with.

However, Mr Dowding has made no effort whatsoever to comply with those orders. He has not paid any part of the sums ordered to be paid, or made proposals to pay anything.

Accordingly, bearing in mind the policy considerations identified by Sir John Chadwick in Crystal Decisions and Sir Richard Field in Michael Wilson,the “normal consequence” in the words of Patten J in Crystal Decisions or the “working” or “default” position in the words of Saini J in Siddiqi is that a sanction should be imposed which has the effect that Mr Dowding is not able to proceed with his claim without satisfying those costs orders. Further, unless there are strong reasons for making an immediate order, any debarring order that the Court decides to make in the exercise of its discretion should take the form of an unless order, stating either that the proceedings should be stayed or that the proceedings should be struck out in the event that the order is not complied with.

That typical starting point is subject to the need to consider all the circumstances of the case. For example, if the magnitude of the costs in question is small and the consequence for the party in default may be an inability to pursue a genuine claim which has, on the face of it, a far higher value, that may militate against the making of a debarring order.

The first, and potentially “overwhelming”, consideration is whether the making of a debarring order may, in the words of Sir John Chadwick, “drive a party from access to justice”. In the present case, however, that factor has not been made out by Mr Dowding.

At the time the July 2024 Order was made, in keeping with what was said to the Court by Mr de Waal on his behalf, Mr Dowding had sufficient monies in his pension fund to meet the material costs orders in full. Even by the time of the hearing of the Unless Order Application, by when (according to what he told the Court) he had drawn down £8,000 per month for nearly 12 months, his pension fund was worth almost £550,000. That sum is more than sufficient to meet not only all the costs orders contained in the July 2024 Order but also to pay the costs of and occasioned by the Unless Order Application.

Mr Dowding’s evidence that, on draw down, this sum of £550,000 would be reduced by tax to around £302,500 is not supported by any documents. If tax were payable at 45% on the entire withdrawal, that would produce a net figure of £302,500. However, for that to be correct, Mr Dowding would need to be paying tax at the highest rate on any sum that he withdraws from his pension fund at this stage of the current tax year, which (a) would only make sense if he had other income (which he has not admitted to having) and (b) does not accord with the tax that he says that he has paid on the £8,000 per month he says he has been withdrawing in recent months. In addition, this would only be correct if he has used up his 25% tax free allowance, and he has produced no evidence of that.

For these reasons, I am unable to accept that only £302,500 is now available to Mr Dowding from his pension fund. In any event, even if that is correct, the reason why Mr Dowding has no more than that available from that source is that he has chosen to expend monies not only on living expenses but also on pursuing various legal proceedings, which, moreover, all appear to have been determined by a number of other tribunals as lacking in merit. On his own figures, provided to the Court during the course of the hearing, that legal expenditure amounts to at least £25,000 - although here, again, Mr Dowding has provided no evidence to show that this figure is correct. None of the cases to which I was referred address circumstances where the party in default is unable to meet a costs order at the time that a debarring order is sought as a result of that party’s expenditure on matters other than meeting the costs order, between the time when the costs order was made and the time that the debarring order is sought. As a matter of general principle, however, I cannot think that it would be right, or would accord with the policy considerations identified in the decided cases, to allow any party to take advantage of that party’s deliberate decision to ignore a costs order and instead spend monies in other ways to say that no sanction for non-payment of costs should be imposed.

If I had thought it right to accept that the monies available from the pension fund would be insufficient to meet the material costs orders, and to leave to one side the question of whether that state of affairs had only come about because Mr Dowding had chosen to delay paying those costs (or any part of them) while drawing down that fund for other purposes, I would still have made an unless order as sought by TCG, albeit in different terms. In those circumstances, I would have been minded to order that the claim should be struck out unless Mr Dowding paid some amount (on the figures that he has given, £302,500) within 28 days and the balance within, say, 28 days of sale of the Property.

In my view, the fact that there appear to be only limited resources available to meet the costs orders that have been made in favour of TCG is a highly relevant consideration, as is the fact that, left to his own devices, Mr Dowding clearly has a propensity for pursuing multiple claims, some of which at least involve him incurring legal expenses, and all of which, to date, appear to have resulted in him incurring costs liabilities to third parties. In these circumstances, in the absence of a debarring order, there is a clear risk that there will be insufficient funds available to meet the costs orders in favour of TCG by the time those orders can be enforced by TCG, while in the meantime, in the absence of an order, Mr Dowding can continue not only running up his own legal costs, but also causing TCG to run up further costs in defending the claim, some or all of which may never be paid.

The next major consideration identified in the authorities is whether the receiving party has alternative means of enforcing the material costs orders. In the present case, the only alternative course that has been suggested consists of obtaining an order for sale of the Property. However, (i) Mr Dowding is not amenable to that order for sale, (ii) it appears that there is no prospect that it will be made for many months, and (iii) in any event, it will not produce by a very substantial shortfall (at least £150,000) sufficient funds to satisfy the costs orders (which continue to grow in amount due to the accrual of interest). In my judgment, TCG does not have alternative means of enforcement for these reasons. In fact, it would seem that TCG only decided to apply for a debarring order (on 6 June 2025) after it became apparent (on 29 May 2025) that the proceedings seeking an order for sale of the Property were being met by an application for a stay pending resolution of the Fraud Proceedings. If that is right, Mr Dowding has prompted TCG to act as it has.

A further point mentioned by Sir Richard Field relates to the circumstances in which the costs orders in question were made. In the present case, it was not submitted on Mr Dowding’s behalf that it was not appropriate to make those orders before the conclusion of the proceedings, and nor am I able to identify any ground(s) on which such a submission could or should have been made. The submissions that were made concerned the quantum of the orders, and the need for time to pay because payment was to be made out of Mr Dowding’s pension. This consideration cannot assist Mr Dowding in this case.

In my opinion, on the facts of the present case, that leaves only the existence of the Fraud Proceedings as a material consideration standing between Mr Dowding and the making of the unless order sought by TCG. In my judgment, however, the Fraud Proceedings provide no sufficient reason for the Unless Order Application to be refused or stayed for the following principal reasons:

In identifying the above considerations as being those that are of relevance I have not overlooked the fact that both sides suggested that other factors were, or might be relevant. I do not propose to address all those other arguments, as I have not been swayed by them.

They include Mr Dowding’s argument that TCG has not suggested that it has any substantive defence to his claim. As to that, and as I indicated during the course of the hearing, it is undeniable that TCG’s case is that it does have a defence, and I am in no position to say that its defence lacks merit. They also include Mr Dowding’s reliance on a series of cases which are said to support propositions such as (i) allegations of forgery cannot be disposed of summarily and need to be tried and (ii) where a claim is made that a judgment has been obtained by fraud, proceedings to enforce that judgment should be stayed until the validity of that claim has been resolved. Quite apart from the fact that I do not accept that the cases he cited necessarily support the propositions that he sought to extract from them, in my judgment it is clear that each case turns on its own particular facts, and, in my opinion, these propositions do not apply to the facts of the present case.

The reasons why I refused Mr Dowding’s application for an adjournment to enable him to consider Mr Stanbury’s witness statement are (i) that it was produced late (on 24 June 2025) because it was produced in answer to Mr Dowding’s evidence which was itself produced late (on 23 June 2025) and (ii) I was unable to see that any consideration by Mr Dowding would enable him to counter the factual content of that witness statement.

I refused Mr Dowding’s application pursuant to CPR Part 44.11(1)(b) because his argument that TCG’s costs should be disallowed on the basis that “the conduct of a party or that party’s representative before or during the proceedings” was “unreasonable or improper” was based on the same allegations as form the basis of the Fraud Proceedings, and everything that I have said about the strength of those proceedings applies here also.

Finally, my reasons for ordering (i) that the sanction to be inserted in the debarring order should be strike out rather than stay, (ii) that the costs of the Unless Order Application should be added to the costs that were ordered to be paid by the July 2024 Order for the purposes of the debarring order, and (iii) that those costs should be paid on the indemnity basis, were essentially the same as the reasons I gave orally for making this last order:

“The reason for making the indemnity costs order, as it seems to me and as will appear more fully in the judgment, is that this has been an absolutely flagrant, prolonged and consistent ignoring of the court’s orders which were made last year, were made on the basis that time was needed for monies to be taken out of the pension fund (which is why I gave time in the original order), have been appealed unsuccessfully, and have been in place, having gone through the permission to appeal process, since October last year in respect of some orders, and at the latest 6 January this year in respect of another.

During that period, not only has the claimant paid nothing, nor offered to pay anything, or made any proposals at all, but he has been spending money, obviously on his living expenses and so forth, but also on more and more litigation, all of which seems to me to be ill-conceived and none of which has to date met with any measure of success at all. The claim against Allenby Capital Limited failed at first instance on 24 July 2024. There has been an appeal, the outcome is not known yet, but as matters stand that has failed. Further matters that I will go over in more detail in the judgment seem to me to be equally baseless. And this is all against a background of litigation which other judges have seen and condemned as being totally lacking in merit, as I understand it on at least three occasions.

The background is, in my view, condemnatory of Mr Dowding, but the foreground, which is his attitude to these orders and his complete ignoring of these liabilities and failure to make any payment or proposal of payment, in my judgment is very serious and well out of the norm.

There is validity also in the criticism of the material he has put forward explaining his assets and his means, but I do not attach a special weight to that because it does seem to me he has put in some documents showing what his capital assets are and he has explained, albeit it is not satisfactory, how he is living mainly by drawing down his pension.

However, lastly, I would just comment that the fact he can draw down his pension as and when he feels like it to meet living expenses and the expense of other litigation certainly demonstrates how easy it is, or would have been, for him to resort to that to meet these liabilities.

He could instead, of course, have allowed the defendants to proceed to enforce against the property that he has, but he has resisted that, forcing them really, as I see it, to have recourse in reality to his pension fund.

He is in a very unhappy position because on the disclosure he has made he can ill-afford to meet these costs liabilities: either his home may be forfeit or his pension may be forfeit - possibly, if things go on the way they have, both. That is a consequence of bringing and pursuing expensive litigation which has all been unsuccessful, resulting in the costs orders which the defendants have had to come to court and make an application to enforce.

All of that, in my judgment, is well out of the norm, even for cases where such orders are asked to be made to enforce compliance with previous costs orders.

This is, in my judgment, a very bad case indeed of failing to comply with the court’s previous orders or making any effort to do so, and that is why I consider an order for indemnity costs to be appropriate.”

APPENDIX

DAY 1