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

Mr Dowding’s case

Mr Dowding filed a 5^th witness statement, dated 23 June 2025, in support of the Amendment Application and in opposition to the Unless Order Application. He also served a Skeleton Argument, in almost identical terms to that witness statement. It is therefore sufficient to refer to the witness statement alone. It makes the following principal points with regard to the Unless Order Application:

So far as concerns legal principles, the witness statement makes the point that in Crystal Decisions (UK) Limited and Others v Vedatech Corporation and Another [2008] EWCA Civ 848 “it is clearly stated that the use of a debarring order or unless order, to ensure that a costs order is satisfied, is subject to ensuring access to justice under Article 6 of the Human Rights Convention”, and “an order requiring payment of costs as a condition of proceeding with litigation should not be where to enforce such an order would drive a party from access to justice”. As indicated above, reliance is then placed on the judgment of Sir Richard Field in the Michael Wilson & Partners case.

At [37] of the witness statement, Mr Dowding states:

“My evidence as to inability to pay down the Judgment Debt now without having the benefit of the proceeds of the breach of contract damages claim of £390,000 is as follows:

I have a property valued at £600,000 fully charged including in favour of HSBC Bank and the Defendants with outstanding mortgage of £440,000. The Defendant’s, I believe have obtained a valuation of £620,000. A copy of my mortgage details can be seen at MD5/35-40.

I have a pension fund of circa £550,000 (please see MD5/47) which on an annuity basis is capable of providing an annual income, for a 60-year-old, according to The Times of between £35,283.16 and £37,207.99 per annum (please see MD5/54). If I liquidated the fund in full now I would have no income and post-tax the realisation would be circa £302,500, however that would leave me with no source of income and is therefore untenable as a strategy to settle the Judgment Debt now as I would have no means to live. I am 60 years old and cannot claim state pension until age 67.

My girlfriend contributes £800 towards bills each month.

Monthly living expenses are circa £2,750 including Rates £188, water £50, electric £180, service charge £340, food and general £2,000.

Fixed monthly mortgage payments are £1,775.58 see MD5/38-40.

Fixed monthly loan repayments are £1,217.55 (Zopa Bank, and Santander see MD5/41 and MD5/44).

I do not have a further source of family or friends finance.”

At [38] of the witness statement, Mr Dowding states:

“I do not have the means to settle the Judgment Debt now, and if the Court makes the unless order in the terms sought by the Defendants that will completely stifle the current claim for breach of contract, which is undefended and has a value in excess of the Judgment Debt. The Defendant has said nothing about any prospective defence and that indicates without more that the claim should succeed and yield damages in excess of the Judgment Debt and thus could provide the necessary funds to settle the Judgment Debt. I believe that an unless order now in the terms sought will result in an infringement of my human rights to pursue the breach of contract claims.”

At [42] and [49] respectively (omitting the intervening paragraphs, which make points about the suggested merits of Mr Dowding’s new fraud proceedings) it is stated:

“In terms of pragmatism and being mindful of the relevant authorities cited above including Broomhead v National Westminster Bank plc [2020] EWHC 1005 (Ch) I respectfully ask the Court to defer the making of any unless order until after there is a resolution of the Set Aside Claim, or at least until after there is a decision pursuant to any strike out application relating thereto.

…

I ask the Court to exercise its discretion to defer the making of an unless order so that the Breach of Contract claim defence can be presented, (if there is a defence), and damages may become available in short time which the Defendants can seek then seek to enforce settlement of the Judgment debt from the damages, further, I also ask for a stay on enforcement of the Judgment Debt pending resolution of the undefended Sat Aside Claim. I believe such action would be within the overriding objective.”

The first of these quoted paragraphs formed the basis of Mr Dowding’s contention that he had made an application that the hearing of the Unless Order Application should be stayed or adjourned until after determination of the Fraud Proceedings. The second of these quoted paragraphs makes clear, in my view, that if the Court is not minded to grant that application, Mr Dowding is nevertheless arguing that there should be no enforcement of the costs orders contained in the July 2024 Order until after trial of the substantive claim in these proceedings (at which time he suggests that the Defendants can seek to enforce payment of those orders against any damages he may be awarded).

The contents of exhibit MD5 include some screenshots relating to Mr Dowding’s accounts with HSBC. These appear to show a mortgage with a balance of almost exactly £300,000, a second mortgage with a balance of almost exactly £100,000, and a third mortgage with a balance of a little over £40,000. A Zopa screenshot appears to relate to a loan of £25,000, with a little more than that outstanding, and a copy of an agreement with Santander relates to a loan of £20,000. A summary of Mr Dowding’s account with AJ Bell shows that his pension fund was worth £547,737.52 on or about 20 June 2025.

It is immediately apparent that Mr Dowding’s evidence does not explain how he is funding his lifestyle, to say nothing of legal advice and representation and associated expenses such as payment for the reports of forensic handwriting experts. However, in answer to questions from me, Mr Dowding said the following: