David Raymond Brierley v Frank Otuo & Ors
[2023] EWHC 919 (Ch)
Brierley v Otuo & Ors
11 March 2024
[2024] EWHC 2549 (Ch)
High Court
A property dispute went to court many times. One order discharged some legal claims, but the losing party wanted the order changed to include their costs. The judge said no, because the order was clear, and changing it would cause problems. So the losing party still lost.
Key Facts
- •Appeal concerning costs and expenses of sale and enforcement of properties in a property partnership dispute.
- •Dispute involved numerous hearings before various judges and masters.
- •Appeal focused on the interpretation of a court order discharging charging orders.
- •Appellant argued for an implied term in the order regarding costs of sale.
- •Permission to appeal was granted with limitations.
Legal Principles
In the absence of an express term, there is no implied obligation upon the mortgagor to pay the costs, charges and expenses incurred by the mortgagee.
Fisher & Lightwood’s Law of Mortgage, paragraph 55.6
Court orders should be restrictively construed; an order must be clear and unequivocal; words are given their natural and ordinary meaning, construed in context, including historical context, and with regard to the object of the order.
Pan Petroleum AJE Limited v Yinka Folawiyo Petroleum Co Limited [2017] EWCA Civ 1525, at [41] to [44]
The reasons for making the order are admissible to construe the order; interpretation may be affected by knowing what the court considered to be the issue the order was supposed to resolve.
Sans Souci Limited v VRL Services Limited [2012] UKPC 6 at [13]
It is important not to stretch legal analysis to capture what are seen as the merits or lack of merits of the case.
JSC BTA Bank v Ablyazov [2013] EWCA Civ 928, [2014] 1 WLR 1414 at [5] and [2015] UKSC 64 at [17]
Outcomes
Appeal dismissed.
The court found that importing an implied term into the March 2022 Order regarding costs of sale would significantly alter the plain meaning and violate principles of finality. The charging orders were discharged, leading to the cessation of the order for sale and thus the basis for the claimant's entitlement to costs.