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

Sophocles wrote (in the words of John Moore’s translation of the tragedy of Ajax): “It is a painful thing to look at your own trouble and know that you yourself and no one else has made it”. That, in my view, is the predicament in which the Claimant (“Mr Dowding”) now finds himself. As appears below, essentially as a result of the way in which he chose to plead his case and to contest the efforts of the Defendant (“TCG”) to restrict that case to what is properly arguable, a number of substantial orders for costs were made against Mr Dowding in July 2024. Mr Dowding sought, but was refused, permission to appeal against those orders to the Court of Appeal. According to the disclosure Mr Dowding has provided, his only source of income is his personal pension, and his only substantial assets are his personal pension fund and the equity in his home. He now faces losing that fund, and maybe also his home, to meet those costs orders.

On this occasion, there are two applications before the Court. The first in time is Mr Dowding’s application, made by notice dated 11 October 2024, seeking permission to rely on a draft Amended Claim Form and a draft Amended Particulars of Claim (“the Amendment Application”). The second in time is the application of TCG, made by notice dated 6 June 2025, seeking an order that unless Mr Dowding pays various sums due under previous orders for costs made against him (including interest at the judgment rate of 8%), together with the costs of that application in the event it succeeds, within 14 days of the date of that order, either his claim should be struck out and he should be required to pay TCG its costs of these proceedings, or alternatively his claim should be stayed until those sums have been paid in full (“the Unless Order Application”).

Both of those applications arise from an Order that I made on 18 July 2024 (“the July 2024 Order”), following the hearing on 19, 20 and 28 June 2024 and 5 and 18 July 2024 of (i) an application by TCG to strike out large parts of Mr Dowding’s pleaded case, and for summary judgment against him on a substantial part of that case, (ii) a number of applications made by Mr Dowding, and (iii) ancillary issues which had been left over to be determined at that hearing by a previous order or previous orders of the Court.

On the first three of those dates Mr Dowding appeared in person, and on the fourth and fifth of those dates he was represented by John de Waal KC. TCG was represented by James Laddie KC and Ian Helme, and by Mr Helme alone on the fifth of those dates.

TCG succeeded on its applications, and Mr Dowding failed on his. Accordingly, so far as immediately material to the applications now before the Court, the July 2024 Order provided:

The reference in the July 2024 Order to the “SO/SJ Application” is to TCG’s application to strike out parts of Mr Dowding’s Particulars of Claim, and for summary judgment in respect of part of that pleaded case. The explanation for the references in the July 2024 Order to TCG as “the First Defendant” and to “the Defendants” is that the proceedings were brought not only against TCG but also against three individuals. One of the consequences of the “SO/SJ Application” is that they were removed from the claim.

The Amendment Application has its origins in paragraphs 7-12 of the July 2024 Order. As set out in earlier paragraphs of the July 2024 Order, a large number of paragraphs of Mr Dowding’s Particulars of Claim were struck out or made the subject of summary judgment against him. In those circumstances, it became necessary for his Claim Form and Particulars of Claim to be amended to take account of the Orders made in those earlier paragraphs. Because Mr Dowding had been acting in person, at the conclusion of the substantive hearing on 5 July 2024, I was initially not minded to make a detailed or proscriptive order about the form of those amendments, as I thought that might place an undue burden on him. However, Mr Laddie was seeking such an order, and I was told by Mr de Waal that Mr Dowding intended to instruct Junior Counsel to draft the amended texts and (as Mr de Waal put it at the hearing on 18 July 2024) he “thought it probably would help Mr Dowding to have his pleading professionally drafted”.

Accordingly, as the transcript shows, I expressed the view that if both sides considered an Order dealing with the re-pleading of the claim to be appropriate, it was not for me to stand in their way. In fact, the case had to come back for a further hearing on 18 July 2024 because, although I was told by Mr de Waal on 5 July 2024 that the form of Order proposed by TCG was agreed or substantially agreed, it subsequently emerged that, in fact, Mr Dowding had a variety of disagreements with TCG’s proposals. The upshot of the hearing on 18 July 2024 was that Mr Dowding made no or little headway in seeking to reargue points that, as I was told on 5 July 2024, had been agreed. Also, I took the view that Mr Dowding should be ordered to pay the costs of that hearing, essentially on the footing that it had only been made necessary due to his change of stance, and, moreover, to the extent that he succeeded in revisiting points he achieved little success.

This explains the level of detail in paragraphs 7-12 of the July 2024 Order. In fact, the only change that was made to those paragraphs was that I extended by 14 days the dates which had originally been agreed on 5 July 2024. To complete the history of the Amendment Application, Mr Dowding did not, in fact, instruct Junior Counsel to assist him with the amendments, but instead served a draft Amended Claim Form and a draft Amended Particulars of Claim on 16 August 2024, each in a form drafted by him. By letter dated 13 September 2024, TCG’s solicitors wrote to Mr Dowding explaining why TCG contended that this draft Amended Particulars of Claim did not comply with what Mr Dowding had been ordered to do and was defective. They also stated “In an attempt to find a reasonable and pragmatic way forward without troubling the Court further at this stage, and pursuant to the Overriding Objective, TCG is willing to grant you a further opportunity to produce a new version of the DAPOC that complies with paragraph 8 of the Order”, and proposed that extensions should be agreed to the dates set out in the July 2024 Order. Mr Dowding responded by issuing the Amendment Application. In due course, the Amendment Application and the Unless Order Application were listed for hearing before me on the same day. In light of the history, and having regard to the contents of the applications, I heard the latter application first.

The Unless Order Application has its origins in paragraphs 14-26 of the July 2024 Order. As appears below, Mr Dowding has not paid, or offered to pay, any of the sums that he was ordered to pay by those paragraphs of the July 2024 Order, nor made any proposals with regard to payment of any of those sums, or any part of the same. This is in spite of the fact that (1) his application for permission to appeal against the costs orders contained in paragraphs 17, 18, 19 and 26 of the July 2024 Order (amounting in total to £66,500) was refused by Nugee LJ on consideration of the papers on 10 October 2024 and (2) his application for permission to appeal against the costs order contained in paragraph 15 of the July 2024 Order (in the sum of £221,500) was refused by Nugee LJ on consideration of the papers on 6 January 2025. In the meantime, as detailed below, Mr Dowding has not only been expending sums on other proceedings brought by him, but has also been drawing down substantial monies from his personal pension. This was identified by Mr de Waal on 5 July 2024 (when asking for time to pay) as the source from which Mr Dowding was going to make payment of the costs ordered by the July 2024 Order: “He has to break into his pension to get the money”. To similar effect, on 18 July 2024 I said to Mr de Waal “I think you told me that he needed time to release money from his pension. Is that right?”, and Mr de Waal replied “Yes”.

Mr Dowding made or intimated a number of further applications at or in the run up to the hearing. At the conclusion of the hearing, I informed the parties that I had decided to grant the Unless Order Application (save that I would allow Mr Dowding 28 days rather than 14 days to make payment), and not to accede to any of Mr Dowding’s applications. I allowed 28 days for payment because Mr Dowding explained during the course of the hearing that he had been withdrawing sums on a monthly basis from his pension fund. He confirmed that he should be able to withdraw the sums he was liable to pay within 28 days. The form of Order agreed following the hearing is as follows:

“UPON the Order of Richard Spearman KC (sitting as a Deputy High Court Judge) dated 18 July 2024 (the “July Order”) which, inter alia, (i) struck out and/or granted reverse summary judgment on various of the Claimants’ claims against the First Defendant; (ii) struck out the Claimants’ claims against the Second, Third and Fourth Defendants in their entirety; and (iii) required the Claimant to make payment of the sum of £288,000 to the Defendants (the “Judgment Debt”) by 4pm on 2 August 2024

AND UPON the Claimant having failed to pay the Judgment Debt (or any part of it) to the Defendants

AND UPON the Claimant’s application by notice dated 11 October 2024 seeking permission to rely on a draft amended Claim Form and draft amended Particulars of Claim as served on the First Defendant on 16 August 2024, pursuant to paragraph 11 of the July Order (the “Amendment Application”)

AND UPON the Court listing the Amendment Application to be heard on 25 June 2025 over one day.

AND UPON the First Defendant’s application by notice dated 6 June 2025 (the “Unless Order Application”) supported by the Third Witness Statement of Alexander Weinberg dated 6 June 2025 and Exhibit AW3 thereto (together, “Weinberg 3”)

AND UPON the Court listing the Unless Order Application to be heard on 25 June 2025 together with the Amendment Application.

AND UPON the Court recording having read (i) Weinberg 3; (ii) the Fourth Witness Statement of Alexander Weinberg dated 20 June 2025 and Exhibit AW4 thereto; (iii) the Fifth Witness Statement of Mark Dowding dated 23 June 2025 and Exhibit MD5 thereto (“Dowding 5”) in response to the Unless Order Application; and (iv) the Witness Statement of Daniel Stanbury dated 24 June 2025 and Exhibit DS1 thereto (“Stanbury 1”) adduced by the First Defendant in reply to Dowding 5

AND UPON the Claimant’s oral application for an adjournment to consider Stanbury 1 (the “Claimant’s Adjournment Application”).

AND UPON the Claimant’s oral application pursuant to CPR Part 44.11(1)(b) (the “Claimant’s Costs Application”)

AND UPON the Claimant’s application at the hearing of the Unless Order Application requesting that the Court defer making an unless order pending the determination of separate proceedings issued by the Claimant and seeking set aside of the July Order as having been obtained by fraud (“the Set Aside for Fraud Application”).

AND UPON hearing Leading Counsel for the First Defendant and the Claimant appearing in person

IT IS ORDERED THAT:

1.

Unless the Claimant pays the totality of (a) the Judgment Debt (plus accrued interest to the date of payment at the judgment rate of 8% per annum) in full to the Defendants; and (b) the sum ordered in paragraph 4 below to the First Defendant, by 4pm on 23 July 2025:

(i)

these proceedings shall be struck out without further order of the Court;

(ii)

the First Defendant shall be entitled to file a request for judgment pursuant to CPR 3.5(2)(a); and

(iii)

the Claimant shall be liable to pay the First Defendant its costs of and occasioned by the claim to be subject to detailed assessment on the standard basis if they cannot be agreed.

2.

The Amendment Application (and for the avoidance of doubt, the claim generally) is stayed. If the Claimant timeously complies with his obligation to pay in full the sums set out in paragraph 1 above, he shall have liberty to apply to restore the Amendment Application.

3.

The Claimant shall pay the First Defendant its costs of and occasioned by the Unless Order Application on the indemnity basis to be subject to immediate detailed assessment under CPR 47.1 if they cannot be agreed.

4.

The Claimant shall pay the First Defendant £45,000 as an interim payment on account of his liability for the First Defendant’s costs as set out in paragraph 3 above.

5.

The Claimant’s Adjournment Application is refused.

6.

The Claimant’s Costs Application is refused.

7.

The Set Aside for Fraud Application is refused.

8.

This Order shall be served by the First Defendant on the Claimant.”

My reasons for making an Order in those terms are set out below.