Privy Council Appeal No 79 of 2006 James F Walker Appellant v. Susan Lundborg Respondent FROM THE COURT OF APPEAL OF THE BAHAMAS ----------------- JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL Delivered the 6th March 2008 ----------------- Present at the hearing:- Lord Hope of Craighead Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Mance Sir Christopher Rose ---------------- [Delivered by Lord Walker of Gestingthorpe] Introduction 1. This appeal is concerned with a sale of real property under an order of the court. The property in question is a one-storey residence on a plot of land known as Lot 32, North Cat Cay. It is in a fairly poor state of repair and seems to have been vacant for long periods. But it is described as being in a sought- after location and as having some pleasant features. Differing views have been expressed as to its value, as will appear.  UKPC 17 2 2. The unusual terms of the order and the unusual circumstances in which it was made have given rise to much controversy. It is necessary to set out the facts, so far as they can be established, in some detail. That is not an easy task because there were many conflicts of evidence, some not resolved at first instance and incapable of being resolved by the Board. 3. Part of the difficulty is that although the litigation has so far produced seven orders (interlocutory or final) made by Lyons J, it was only at the hearing leading up to the sixth order that the judge heard oral evidence (in the form of cross-examination of some, but by no means all, of the deponents). Another feature of the case has been concurrent bankruptcy litigation conducted in Florida, initially with little regard to the principles of international comity. Some affidavits sworn in the Florida litigation have been exhibited to affidavits made by other deponents in these proceedings, which is not a satisfactory way of adducing controversial evidence. 4. The seven orders made by Lyons J were: (1) an order made on 3 September 2002 for the sale of the property, then owned by the appellants James F Walker and Carol Ann Walker, to the respondent Susan Lundborg; (2) an order made on 7 July 2003 directing that the sale should be completed within 14 days; (3) an order made on 21 July 2003 (not in the record, and possibly never drawn up) embodying an undertaking that Mrs Lundborg would not proceed pending an application for a stay of the order for sale made by Mr Walker’s Florida trustee in bankruptcy; (4) an order made on 23 March 2004 permitting an intervention by Mrs Lundborg and refusing the trustee’s application for a stay; (5) an order made on 26 July 2004 on the application of Mrs Walker granting a stay of the order for sale until the disputed issues could be resolved by cross-examination of the deponents; (6) an order made on 7 December 2004, after oral evidence had been heard, setting aside the order for sale; and (7) an order made on 28 February 2005 setting aside a money judgment which the plaintiff Eleanor C Cole had obtained against Mr Walker in the Supreme Court of the Bahamas on 3 December 1996, by way of enforcement of an earlier Florida judgment against him. 5. The appeal to the Board is from an order of the Court of Appeal (Ganpatsingh Ag P, Ibrahim and Longley JJA) made on 15 November 2005. 3 This set aside the sixth and seventh of the above orders. The seven orders of Lyons J provide milestones along the weary path of the litigation, and the points at issue before him, and his findings of fact (incomplete though they are) provide the basis on which the issues raised on this appeal must be resolved. The facts down to Mr Walker’s bankruptcy 6. Mrs Cole, Mr and Mrs Walker and Mrs Lundborg are all United States citizens resident in Florida. Mr and Mrs Walker were, however, at one time resident in the Bahamas. In 1983 they purchased the property as joint tenants. They then immediately mortgaged it back to the previous owners, Mr and Mrs Krafft. That mortgage has now been paid off, although at one stage in the litigation that was in dispute. 7. In October 1990 Mrs Cole brought proceedings (1355 of 1990) in the Bahamas to enforce a judgment for about $300,000 which she had in November 1989 obtained against Mr Walker in Florida. Mr Walker entered an unconditional appearance and summary judgment was given against him in April 1991. But a month later he obtained an order setting aside the judgment on the ground that he was challenging the original Florida judgment. Five years went by but the Florida judgment was not set aside. On 3 December 1996 Mrs Cole again obtained summary judgment in her enforcement proceedings in the Bahamas. 8. Under section 63 of the Supreme Court Act the judgment operated as an equitable charge on Mr Walker’s interest in the property, and was enforceable in the same way as an equitable charge. The charge did not affect Mrs Walker’s interest, but it enabled Mrs Cole to apply to the court under Order 31 of the Supreme Court Rules for an order for the sale of the property as a whole. The making of the charging order effected a severance of the joint tenancy. Half of the net proceeds would go to Mrs Walker and the other half would be applied in or towards satisfaction of Mrs Cole’s judgment debt. 9. There was then a further delay before Mrs Cole’s attorneys, Callenders & Co of Nassau, took steps to enforce the equitable charge. They obtained a professional appraisal, dated 3 June 1997 and made by Sir Andrell Laville, valuing the property at $326,250. On 18 June 1999 they finally issued an originating summons (286 of 1999) seeking an order for sale. Those are the proceedings in which all but the last of the seven orders were made. The seventh order was made in the proceedings 1355 of 1990. 10. When the Court exercises its power to order a sale the usual course, provided for in Order 31, is to make an order in general terms, entrusting the conduct of the sale to a specified party, and giving general directions as to the manner of sale (by public auction or private treaty), the minimum price, and so on. That was the relief originally sought by the originating summons issued by Mrs Cole, with Mr and Mrs Walker as the original defendants, and Mrs Krafft 4 Keims (then the sole mortgagee, since her husband had died) added as a third defendant in June 1999 since the legal estate was still vested in her. 11. Mr Sidney Collie, a Nassau attorney, entered an appearance for Mr and Mrs Walker on 18 August 1999. He had been instructed by Mr Walker through Mr Gary Rotella, a Florida attorney, and the three of them had a meeting at Mr Rotella’s office at Fort Lauderdale on 14 August 1999. Mr Walker asked Mr Collie to act for himself and Mrs Walker. Mr Collie’s evidence, which the judge accepted, was that he had never met Mrs Walker face to face, had never spoken to her on the telephone, and had never received any instructions from her. His only contact was with Mr Walker (and even that contact was limited and intermittent). 12. There was then a further period of inactivity. The rest of 1999, the whole of 2000 and most of 2001 went by without any progress. Mrs Cole’s attorney, Mr Stephen Turnquest of Callenders, wrote to her on 31 July 2001 apologising for delay in obtaining certified copies of documents. In his letter he stated that he did not think that another appraisal of the property was necessary. Mrs Cole (who was by this stage an elderly lady in poor health) finally swore her first affidavit in support of the originating summons on 9 January 2002. It had three formal exhibits which did not include the 1997 appraisal of the property. 13. In early January 2002 (according to an affidavit sworn by Mrs Cole) she was approached by Mrs Lundborg, who expressed an interest in buying the property. Mrs Lundborg resided at West Palm Beach, Florida, but she owned another property at Cat Cay and was a member of the Cat Cay Club. On 27 January 2002 Mrs Lundborg sent Mrs Cole a document described as a letter of intent for the sale and purchase of the property for $400,000 (with some further sums for attorney’s fees). Mrs Cole seems, initially, to have been grateful to Mrs Lundborg for her intervention. 14. In the summer of 2002 there was renewed contact between Mr Walker and Mr Collie. Mr Walker seems to have become aware of Mrs Lundborg’s interest in the property and of the prospect of the originating summons eventually coming before the court. Mr Collie passed on to Mr Turnquest an offer from Mr Walker to settle for $40,000, said to be based on an appraisal of the property at $100,000 (in fact, Mr Walker later explained, a colleague had been trying to “low-ball” him). This offer seems to have been an obvious try- on but Mrs Lundborg has relied on it as evidence of Mr Walker’s true view as to the value of the property. Apart from the “low-ball” offer there was a conflict of evidence between Mr Walker and Mr Collie about what instructions were given. 15. The originating summons was heard by Lyons J on 3 September 2002. The hearing was set for 2.30 pm. A lot seems to have happened that morning. Mr J Michael Saunders, an attorney with Callenders, swore an affidavit exhibiting the appraisal. He gave no explanation of why this document, then 5 more than five years old, was put in evidence only on the day of the hearing. In his first affidavit he asked for a reserve price of $326,250 to be set. 16. Mr Saunders then swore a second affidavit, the text of which (in its entirety) was as follows: “1. I am authorised by the Plaintiff to swear this Affidavit for the purpose of presenting to this Honourable Court on behalf of the Plaintiff a bona fide offer to purchase the property the subject of this Action, the Plaintiff being resident out of the Bahamas in the State of Florida, the USA. There is now produced and shown to be marked “JMS 1” a true copy of a written offer dated September 3, 2002 made by Susan Lundborg, US Citizen, to purchase the subject property for the sum of $400,000 with an agreement to defray the Plaintiff’s legal costs up to a maximum of $19,000. 2. I verily believe that a sale to Mrs Lundborg on the terms specified would be at least as advantageous as a sale by any other method. 3. In the premises I pray that this Honourable Court authorise a sale of the subject property to the said Susan Lundborg at the price indicated.” 17. The text of Mrs Lundborg’s e-mailed offer (in its entirety) was as follows: “OFFER TO PURCHASE This offer to purchase represents an offer to purchase via “Private Contract” the property located in Cat Cay, Bahamas, Lot 32, known as “Carim” as described more precisely in various documents. The offer is for $400,000 plus up to $16,000 of attorney fees which may be due to her attorney in the Bahamas and up $3,000 of attorney fees which may be due to Mrs Cole’s attorneys in the United States. Payment will be made upon satisfactory completion of any and all necessary legal documents executed in both or either of the United States or the Bahamas which will lead to the clear and unclouded title to the above-mentioned property which allows the legal transfer of the title of the said property into the name of Susan Lundborg or an entity named by her. 6 Payment will be allocated at the time of the closing in a manner satisfactory to both parties.” The e-mail was signed by Mrs Lundborg and dated. 18. Mr Saunders gave no explanation in his affidavit, and neither he nor Mr Turnquest has since given any explanation, of the circumstances in which this offer had providentially arrived at Callenders’ office on the morning of the hearing, or of how he had obtained authority from Mrs Cole to present the offer to the Court. Mrs Lundborg swore an affidavit on 22 May 2003 deposing that Mr Turnquest “represents [Mrs Cole] generally but myself as well for the purposes of this transaction.” Against that, Mrs Cole’s daughter Caroline deposed in an affidavit sworn on 26 July 2004: “I also assisted my mother in communicating with her then lawyer, Stephen Turnquest. Mr Turnquest was not authorised to represent to this Court on September 3, 2002, that my mother consented to the $400,000 offer, which she had rejected on numerous occasions over the course of the previous eight months.” 19. So the matter came before Lyons J in the afternoon. The order records that Mr Turnquest was appearing for Mrs Cole and Mr Collie for Mr and Mrs Walker. None of the parties was present in person. Mr Collie did not see Mr Saunders’ second affidavit until he got to court. 20. The judge (in his judgment leading to the sixth order) accepted Mr and Mrs Walker’s and Mr Collie’s evidence about this: “I have heard from Mr and Mrs Walker. I have many affidavits here. I do not nead to list them. I have had the opportunity of observing Mr and Mrs Walker. What they both said was that they never gave Mr Collie express instruction to accept the $400,000 offer from Mrs Lundborg. I have heard from Mr Collie. Mr Collie’s evidence was that he had general instructions to get a sale of the property (at least of Mr Walker’s interest), if it would help Mr Walker’s position. He had never met Mrs Walker and had never received any instruction from her. As I have said, Mr and Mrs Walker both told me it was not until June/July of 2003 that they received notice of this particular court order (3 September 2002) and realised its implication. I accept that evidence. I accept Mr Collie’s evidence. It seems therefore that what has happened was that Mr Collie came to court full of good intentions. On 3 November he had instructions in the round shall I say, non-specific, but general instructions to do what he could to help Mr Walker’s 7 predicament. He followed those instructions. But he accepts he never had express instructions to bind the Walkers to this $400,000 offer of Mrs Lundborg. Literally as he was walking through the doors coming to court he had no opportunity to get those specific instructions as to the terms of the offer. That is accepted by me without any question.” 21. The judge made an order for the property to be sold to Mrs Lundborg on the terms of her offer. By paragraph 1 it was ordered that her offer (identified by its date and exhibit number) “be and is hereby accepted”. The rest of the order was in a form appropriate to a sale by order of the court (rather than an order staying proceedings because a sale out of court had been agreed). Mrs Cole’s attorneys were given conduct of the sale. They were to receive the purchase money and pay half the net proceeds to Mr Collie on behalf of Mrs Walker. The order gave liberty to apply on two clear days’ notice to anyone affected by the order. 22. On 28 September 2002 Mrs Cole e-mailed Mrs Lundborg with “a profound apology for my stupidity over this entire transaction”. She referred to Mrs Lundborg as “my hero”. This and the e-mail to which it was responding remain unexplained. They are something of a mystery because within a month Mrs Cole decided to appoint a United States attorney, Mary Alice Gwynn, to investigate what was going on. Ms Gwynn came to Nassau in November 2002 and reviewed Mr Turnquest’s file. On 29 November 2002 Mr Collie sent a formal notice to complete to Mrs Lundborg care of Callenders. There was no cross-examination about this but on the judge’s findings as to their state of knowledge Mr and Mrs Walker cannot have authorised it. 23. The e-mails between Mrs Lundborg and Mrs Cole, and Mr Collie’s service of a notice to complete, apparently without instructions, are symptomatic of a general obscurity, during the period between the first and third orders of Lyons J, as to the true motives and objectives of the parties and their lawyers. Everyone seems to have had his or her own agenda, and only a small part of the story has been explored in cross-examination. But it is impossible for the Board to make findings about those matters, and it is unnecessary to do so in order to dispose of this appeal. It is sufficient to say that during this period the brief friendship between Mrs Cole and Mrs Lundborg came to an end, being replaced by mistrust on the part of Mrs Cole and an inclination to retaliate on the part of Mrs Lundborg. Mr Turnquest, whose evidence in Florida was that he had started to act for Mrs Lundborg at the express request of Mrs Cole, found himself in the difficult position of having two clients with sharply conflicting interests. He also had a personal interest since (as he candidly stated to Ms Gwynn) it was only by a sale of the property that he was going to get his fees. Meanwhile Mr Walker was sliding inexorably into bankruptcy in Florida. 8 The Florida bankruptcy 24. Mr Walker’s bankruptcy in Florida had a great influence on the parties’ conduct in the litigation in the Bahamas, especially as all involved are United States citizens. In retrospect it can be seen to have been of marginal relevance to the issues that the Board has to decide. Nor has the Board heard any argument about any issues of private international law. But because the bankruptcy litigation occupies so much space in the documentary evidence it will be useful to give a brief summary of (first) some uncontroversial points of private international law and (second) the salient events in the bankruptcy. 25. In the Bahamas there are no statutory provisions for cross-border assistance in insolvency with an international element involving the United States. Under general principles of private international law one country will usually recognise the status of a trustee in bankruptcy (or similar officer) appointed by another country, and will also recognise his title to moveable (but not immoveable) property situated in the recognising country. Mr Walker’s interest in the property was immoveable property. Even if under Florida bankruptcy law Mr Walker’s world-wide estate, moveable and immoveable, vested in his trustee, courts in the Bahamas would not recognise the trustee’s title to immoveable property within its jurisdiction. 26. On 10 January 2003 a judge in Florida appointed Linda Walden as receiver for Mrs Cole to get in Mr Walker’s assets. During February Mrs Lundborg was subpoenaed to produce documents for the purposes of the receivership. On 25 April 2003 Mr Walker (through his Florida attorney, Mr Rotella) filed for Chapter 7 bankruptcy. Mrs Cole proved in the bankruptcy and proposed Ms Walden as trustee, an appointment which was confirmed on 9 July 2003. On 17 July (as a direct result of the Walkers finally finding out about the sale order) there was an emergency hearing at which the bankruptcy judge took it upon himself to declare that “the orders [sic] issued on or about July 7 2003 by the Commonwealth of the Bahamas” were null and void. He ordered that there should be no sale of the property without the authority of the Florida bankruptcy judge. 27. The reference to orders of 7 July 2003 (the date of the second order) rather than to the first order and the second order was the result of an error in a fax transmission from Mr Collie to Mr Rotella. The error made it appear that the sale had been ordered after the bankruptcy. Ms Walden faxed a copy of the Florida order direct to Lyons J, who was understandably affronted. On 5 May 2004 the bankruptcy judge withdrew his declaratory order after a hearing at which several witnesses, including Mr Turnquest, were cross-examined. 28. Although Mrs Cole had proved in the bankruptcy she seems to have become increasingly disillusioned about legal processes both in the Bahamas and in Florida. At some stage the trustee in bankruptcy, Ms Walden, was removed from office. Mrs Cole herself ceased to participate (either personally or by a legal representative) in either set of litigation. Indeed in Florida she 9 repeatedly failed to respond to subpoenas and on 12 April 2005 her proof of debt was cancelled and heavy costs were awarded against her. Mr Walker was discharged from bankruptcy on 21 September 2005. Very recently on 29 November 2007, there was a further order setting aside the original Florida judgment dated 14 November 1989. The litigation in the Bahamas after the start of the bankruptcy 29. It is now necessary to go back in time to events in the Bahamas. At the beginning of 2003 Mr Turnquest found himself with two clients, Mrs Cole and Mrs Lundborg, with conflicting interests. Mrs Cole was telling him (through her Florida attorney, Ms Gwynn) not to deal with Mrs Lundborg. In February 2003 Mrs Walker gave a deposition in the bankruptcy proceedings. Her later evidence to Lyons J (which he accepted) was that in the course of giving the deposition she became aware of a sale of the property, but not that she was a party to it. The evidence of herself and her husband (which was accepted) was that they only became aware of the full facts on 15 July 2003, when an associate of Mr Collie passed the information to Mr Walker’s attorney, Mr Rotella. 30. Shortly before this Mr Turnquest had made another application to Lyons J, leading to an order made on 7 July 2003 (the second order) in the following terms: “It is ordered that: (1) The sale of the property the subject of this action which was ordered on the 3rd September 2002 to take place to Susan Lundborg proceed on terms previously approved by this Court (2) Completion shall take place no later than 2 weeks from the date of this order And the Registrar is directed to execute on behalf of the Third Defendant [Mrs Krafft Keims] a conveyance of the property to the said Susan Lundborg or her nominee in form approved by the purchaser.” Only Mr Turnquest appeared. The order recited that the judge was satisfied, on the representation of Mr Turnquest, that Mr Collie had been notified and had communicated that he did not object to the relief sought. 31. This order raises a number of puzzling questions. Mr Turnquest was still expressed as appearing on behalf of Mrs Cole, but she had given no instructions for the application to be made. Indeed it was contrary to instructions she had given. Mr and Mrs Walker knew nothing of it either. In an affidavit made in the Florida proceedings Mr Turnquest deposed: “I placed the facts squarely before the Court.” 10 The Board is not in a position to make any finding about that. The affidavits in support of the application (one sworn by Mrs Lundborg and the other, in draft at the time of the hearing, by Mr Turnquest) did, if carefully considered, disclose the material facts. But it would be very surprising, if the increasingly contentious circumstances had been fully explained and brought home to the judge, that he should have left the conduct of the sale in the hands of an attorney who was on the record for the judgment creditor (but receiving no instructions from her) and was also acting for Mrs Lundborg as prospective purchaser. 32. On or about 11 July 2003 Mrs Lundborg paid $402,000 to Callenders. This, according to Mr Turnquest’s evidence to the Florida court on 5 May 2004, when taken together with some outstanding property taxes paid by Mrs Lundborg, amounted or at least approximated to the full purchase price. Mr Turnquest deducted about $44,000 for professional fees due to him from Mrs Cole. He did not inform Mrs Cole of this. He ceased to act for her, according to his evidence, on 21 July 2003. The Board was told on instructions by Mr Knox QC (for the appellants), without contradiction, that the balance of the $402,000 has been repaid at some unspecified time to Mrs Lundborg. 33. The Florida bankruptcy now began to have a direct impact on the litigation in the Bahamas. Ms Walden, the trustee in bankruptcy, faxed the declaratory nullifying order to Lyons J on 17 July 2003. Ms Walden (who was then working closely with Mrs Cole and Ms Gwynn) arrived in Nassau soon after. She was seeking to have the sale order set aside. On 21 July 2003 (the date of expiration of the 14-day period fixed by the second order) there was a hearing before Lyons J attended by Mr Turnquest (for Mrs Lundborg), Mr Moxey (for the trustee), Mr Collie (for the Walkers) and Ms Gwynn and another Florida attorney (for Mrs Cole). There is no copy of any formal order in the record, and no transcript or note of the proceedings, but it is common ground that Mr Turnquest undertook on behalf of Mrs Lundborg not to proceed with the sale pending resolution of a formal application to intervene, and for a stay, to be made by Ms Walden. On the same day Callenders gave notice of their appointment as attorneys for Mrs Lundborg, although she was not yet a party to the proceedings. She made an application to intervene on 14 January 2004. 34. On 10 October 2003 Mr Moxey made an affidavit in support of the trustee’s application for a stay. He deposed that Mr Turnquest had been acting for Mrs Lundborg as well as Mrs Cole; that (so far as he was aware) the property had not been advertised so as to attract the highest bidder; that the valuation exhibited to Mr Saunders’ affidavit was about five years out of date; and that the property had been valued by H G Christie Real Estate at $625,000 as at 18 August 2003. This was the first time that the issue of sale at an undervalue was explicitly raised in the proceedings. Later on, for reasons that are not apparent, it ceased to be a live issue. 11 35. Mrs Lundborg made an affidavit on 23 March 2004 in support of her application to intervene. She deposed that the property had been advertised in the front office of the Cat Cay Club (where she was a member) at an asking price of $375,000, but that there had been no close offer. She stated that she was fairly experienced in and knowledgeable about business matters, including property values, and she did not regard the property as worth even $326,000: “However, as [Mrs Cole] was (and to the best of my knowledge still is) not in good health, I increased my offer purely as an act of charity.” 36. This evidence was however contradicted by Mrs Cole’s daughter Caroline, who lived with her. Miss Cole deposed that Mrs Cole was not willing to sell for $400,000 and that Mrs Lundborg “persisted in harassing my mother by calling at our house until I obtained a restraining order prohibiting her from contacting my mother.” Miss Cole’s affidavit did not specify the date of the restraining order and did not exhibit a copy of it. 37. The evidence of Mrs Lundborg and Miss Cole (like that of Mrs Cole and Mr Turnquest) has not been tested by cross-examination in these proceedings (Mr Turnquest was cross-examined in the Florida bankruptcy proceedings). Only Mr and Mrs Walker and Mr Collie have been cross-examined on their affidavits in these proceedings. 38. The applications by Ms Walden and Mrs Lundborg were heard together by Lyons J on 23 March 2004 (the fourth order). Mr Turnquest, Mr Moxey and Mr Collie were present. Mr Collie seems to have told the judge that Mr Walker no longer supported the sale. Lyons J gave a short judgment which suggests that he was still vexed about the Florida bankruptcy judge having purported to nullify his sale order. He spoke highly of the valuer who made the $326,250 valuation in 1997 and made no comment on its date. He did not refer to the valuation exhibited by Mr Moxey. He said that Mr Walker’s change of mind was too late, and if persisted in might be a contempt of court. He concluded that there was “absolutely no doubt in my mind that there is a binding contract for purchase/sale between Mrs Lundborg and Mr and Mrs Walker”. He allowed Mrs Lundborg’s intervention and dismissed Ms Walden’s application for a stay. 39. On 27 April 2004 Mrs Cole made an affidavit in the bankruptcy proceedings deposing that she had never met Mr Saunders and had never given him authority to make his affidavit dated 3 September 2002 (presumably the second of his two affidavits of that date). She also made an affidavit sworn on 15 June 2004 in these proceedings. Three or four paragraphs of that affidavit were struck out as containing unsubstantiated allegations of fraud against Mrs Lundborg and Mr Turnquest. But paras 17-19 (not, it seems, struck out) deposed that Mr Turnquest had been acting contrary to Mrs Cole’s instructions when the first and second orders were made. 12 40. On 14 June 2004 Mrs Walker, acting through new attorneys, Lockhart & Munroe of Nassau, applied by notice of motion under Order 45 rule 11 for an order staying the sale to Mrs Lundborg under the first and second orders on the grounds (1) that the representations made to the court on her behalf were made without her knowledge or authority; (2) that the orders had first come to her attention long after they were made; and (3) that Mrs Lundborg’s offer was far below the true value of the property. She gave notice that she would rely on affidavits by herself, her husband and Mr Rotella. In the event there were also affidavits from Mr Collie, Miss Cole, and the valuer, Mr Lowe of HG Christie Real Estate (exhibiting a valuation of the property at $950,000 as at 16 June 2004 and making a retrospective valuation of $640,000 as at 3 September 2002). Mrs Walker’s application was made eleven months after she had learned the full facts and just under three months after the rejection of the trustee in bankruptcy’s application. 41. On 26 July 2004 Lyons J ordered a stay (the fifth order). In his written reasons for his oral decision he stated: “18. I have no hesitation in staying the order until the court gets to the bottom of this. To do anything else would be perverse. 19. So as to avoid any confusion, I shall set out what I see is the issue here. 20. On 3 September 2002 an offer, partly oral and partly written, was made on the Cat Cay land. It was orally accepted by the purported agent of the vendor (Mr & Mrs Walker). This partly oral/partly written agreement was, in part, then incorporated into a Court Order. 21. Two questions arise: (i) As a matter of fact, was the purported acceptance a valid acceptance in that it accurately reflected the principal’s instructions to their agent? (ii) If so, does the court order arguably being part of the “writings” satisfy the requirement of the Statute of Frauds? 22. The question of the validity of the judgment in Ch 1355/90 is an important, but peripheral, issue. If Mr Walker’s Chapter 7 application is satisfactorily resolved, it may become a moot point. 23. Returning now to Mr Lockhart’s application, it appears that evidence will need to be taken in trial format, if the matter proceeds that far.” Earlier the judge had said that he would give some case management directions but he did not give any detailed directions as to what he meant by “trial format”. There were no directions about points of claim and defence or the giving of notices to cross-examine deponents. The issues as stated by the judge were at best imprecise and incomplete. They may be thought to have prejudged 13 the main issue, that is the nature and meaning of the judge’s first order; they also ignored any question of sale at an undervalue. 42. Mr Turnquest made an affidavit on 6 December 2004. Its only purpose was to depose to an equitable assignment by way of security made by Mrs Walker in favour of Mr Rotella. Mr Turnquest did not respond to any of the points raised in relation to his instructions, or the valuation of the property. 43. The making of the sixth order is dealt with in the next section of this advice. 44. Finally on 28 February 2005 (the seventh order) Lyons J set aside the order dated 3 December 1996 made in the proceedings 1355 of 1990. Mr Lockhart represented Mr Walker. Mrs Cole did not appear and was not represented. The judge reached his decision on the basis that Mr Walker was not resident in the Bahamas at the time of service and that leave to serve out of the jurisdiction had not been obtained. The making of the sixth order 45. At the hearing leading up to the sixth order the issues were, in the absence of any case management directions, defined by what Lyons J said when he made the fifth order, and by the two rounds of skeleton arguments put in by Mr Lockhart (for Mrs Walker) and Mr Turnquest (for Mrs Lundborg). It is important to notice that these issues were much narrower than the wide range of matters that had been ventilated in some of the affidavits. In particular, sale at an undervalue was not an issue. Mr Lockhart’s skeleton arguments relied on two main points: first, that Mrs Cole had no cause of action against Mrs Walker, since the charging order did not bind her share; and second, that Mr Collie had no authority, actual or ostensible, to agree or consent to the sale order on behalf of Mrs Walker. Mr Turnquest’s skeleton arguments relied on four main points: first, that the court had no jurisdiction to set aside the first and second orders because there had been no “new occurence” within Order 45 rule 11; second, that Mr Collie had had implied or ostensible authority to bind Mrs Walker; third, that the first order had been perfected for more than two years; and fourth, that the order was unimpeachable, as against Mrs Lundborg, under section 57 of the Conveyancing and Law of Property Act. 46. There is a transcript of the single-day hearing which led up to the sixth order, made on 7 December 2004. Mr Lockhart appeared for Mrs Walker and Mr Turnquest for Mrs Lundborg. Mrs Cole did not appear and was not represented. Mr Lockhart had issued the notice of motion on behalf of Mrs Walker alone, and his skeleton arguments concentrated on her position. But Mr Lockhart had come on the record for both Mr and Mrs Walker, a fact which he mentioned at the beginning of the hearing. Nevertheless the application remained an application on behalf of Mrs Walker alone. Lyons J seems to have lost sight of that point at times in his judgment. 14 47. In opening the application Mr Lockhart referred to Mr Turnquest’s having sworn an affidavit as “highly unusual” and that he was on notice that he had exposed himself to cross-examination. The judge commented that it was “risky”. But in the event the only oral evidence was from Mr Collie, Mr Walker and Mrs Walker. The judge accepted their evidence as already mentioned. In his extempore judgment (which he later edited fairly extensively) the judge held that the first order must be set aside because Mr Collie had no authority to bind Mrs Walker to it. 48. That was effectively the only surviving ground of Mr Lockhart’s application, since at the beginning of his closing submissions he abandoned his point about the court having no power under Order 31 to order a sale of the property as a whole. Mr Turnquest maintained the four main points in his skeleton argument. The judge (who, as the transcript shows, intervened a great deal in the course of both the evidence and the submissions) seems to have forgotten, or not to have accepted, Mr Lockhart’s concession about Order 31, because at an early stage in his judgment he said that Mrs Cole had no right to involve Mrs Walker in the proceedings, and that she could easily have had the action against her struck out. 49. That was an error because, although Mrs Cole’s security extended only to Mr Walker’s share in the property, Order 31 enabled the court to authorise a sale of the property as a whole. An undivided share of a residential property is not a marketable asset. If authority is needed for these propositions it is provided by Midland Bank Ltd v Pike  2 All E R 434. The Court of Appeal referred to that case but seems, with respect, to have misunderstood it. The important difference between Bahamian and English real property law mentioned by the Court of Appeal (that is, that under English law since 1925 an undivided share takes effect only in equity, under a trust for sale) was effectively the only point relied on by the losing party in Midland Bank v Pike: absent that point the court’s jurisdiction to order a sale of the whole property was indisputable. 50. Their Lordships consider that the judge made a further error in his analysis of the meaning and effect of the first order. He treated the order not as a judicial exercise of the court’s inherent and statutory jurisdiction, but essentially as a contractual document. This led to his making the contradictory findings (in para 10 of his judgment) that Mr Turnquest initialled the order (as he did on or before 12 September 2002) on behalf of Mrs Lundborg as well as Mrs Cole; and later (para 40) that he was acting for Mrs Lundborg and not Mrs Cole (the latter finding appears in the edited judgment but not in the original transcript). Whatever doubts and suspicions there may be on these matters, they were simply not an issue before the judge. Mr Lockhart did not rely on them, nor did Mr Knox seek to rely on them before the Board. Although para 1 of the first order referred to Mrs Lundborg’s offer being accepted, paras 2-7 (most of which the judge described as irrelevant) are consistent only with an intention to follow the procedure for a judicial sale under Order 31. In particular, para 6 provided for the registrar to execute the transfer if necessary, 15 a provision also included in the second order. In the circumstances it was unnecessary for the judge to consider the Statute of Frauds. 51. Having settled on his view that the order must be analysed as a contractual document the judge held, relying on the principles in Waugh v H B Clifford & Sons Ltd  Ch 374, that Mr Collie did not have ostensible authority to bind Mrs Walker. He also seems to have held that Mr Turnquest did not have actual or ostensible authority to bind Mrs Cole but (as just mentioned) it was common ground before the Board that in the absence of oral evidence from them this finding should be disregarded. 52. Lyons J did consider the issue of delay, but he did so (in paras 10 to 13 of his judgment) exclusively on behalf of Mr Walker. He referred to Mr Walker’s bankruptcy and to his having taken the “reasonable step” of approaching the Florida court for a stay of the sale order (the judge was here much more indulgent towards the Florida court than he had been a year before). He concluded that Mr Walker’s delay in coming to his court was “explainable”. The Court of Appeal’s judgment 53. Mrs Lundborg launched separate appeals against the sixth and seventh orders of Lyons J. The appeals were heard together. The Court of Appeal allowed both appeals in a single reserved judgment delivered by Ganpatsingh Ag P. As regards the sixth order, the heart of the judgment is in para 14 (after a reference to the grounds of Mrs Walker’s application): “We pause here to comment briefly on these grounds in the context of Order 31 which gives the court an unqualified power to order a sale of land. Mr Collie had been retained to represent both Mr and Mrs Walker. He entered an appearance on behalf of both. His instruction was to agree a sale of the property. He now says he had no specific instruction from Mrs Walker to accept a sale to the intervener with whom he had no dealings. As Order 31 makes clear there is no need for there to be a contract of sale or a consent by the owners to a sale. Once a buyer has been identified who is prepared to pay the best price to the satisfaction of the Court, the procedural provisions for the sale can be invoked. Mr Collie’s attempt to resile from the terms of the order which he consented to, and in which the purchaser’s name is mentioned, cannot be a ground for setting the order aside. Relying on Mr Collie’s representation that the offer of the appellant was acceptable to Mr and Mrs Walker, the Court was satisfied that the price offered was the best one in the circumstances, so as to properly make an order of sale disposing of Mr Walker’s beneficial half interest, which must necessarily involve a sale of the property. Furthermore, the purchaser had partly conformed or complied with the order by paying over the purchase price to the persons appointed to conduct the judicial 16 sale. Liberty to apply could not in our view give the Court a jurisdiction to set aside the order in the circumstances of this case when all the requirements of a judicial sale had been satisfied.” 54. The Court of Appeal was, in their Lordships’ opinion, correct in viewing the first order as directing a judicial sale (with approval of the particular offer made by Mrs Lundborg) rather than as a private-treaty contract which happened to be made before the Court and to be embodied in a court order. But in concluding that all the requirements of a judicial sale had been complied with the Court of Appeal was paying insufficient regard to the judge’s findings of fact (which were not challenged except in so far as Mr Turnquest’s authority) and other credible evidence. Mr Collie had gone beyond his instructions from Mr Walker, and had no instructions whatsoever from Mrs Walker. The sale had not been completed either by a conveyance or by payment of half of the net proceeds to Mrs Walker. The $402,000 must have been held by Mr Turnquest as Mrs Lundborg’s attorney since he apparently repaid most of it to her without the authority of the court. Mr Turnquest was plainly not an appropriate person to have conduct of the sale. On the occasion of the third order Mrs Lundborg had, through Mr Turnquest, given an undertaking not to proceed with the sale, and that undertaking remained in force until it was overtaken by the fifth order. Sale at an undervalue was not an issue before the Court of Appeal, and it was unnecessary for the Court to refer to it. But if the Court was going to address that issue (as it did in para 16) it should not have omitted to mention that the 1997 valuation was five years out of date, and that Mr Lowe’s retrospective valuation was at a much higher figure. 55. In paras 18 and 19 of the judgment the Court pointed out that in making his seventh order Lyons J had been wrong in supposing that in the proceedings 1355 of 1990 Mrs Cole needed leave to serve process out of the jurisdiction. At the material time Mr Walker had a residence in the Bahamas and voluntarily submitted to the jurisdicition. The judge fell into error in setting aside a regularly obtained summary judgment to which Mrs Cole was entitled on the pleadings. The issues in the appeal against the sixth order 56. Counsel agreed that there are two main issues in the appeal to the Board relating to the sixth order: (1) did the judge have jurisdiction to make the order that he made? and (2) if so, was he right to exercise his discretion in favour of Mrs Walker? The first issue raises, apart from common law and procedural issues as to jurisdiction, a point of statutory construction on section 57 of the Conveyancing and Law of Property Act which was raised, but not dealt with, below. 17 Jurisdiction 57. Mr Knox submitted that the first order was a consent order and that it reflected an underlying agreement (or rather the appearance of an underlying agreement) between Mrs Cole, Mr and Mrs Walker, and Mrs Lundborg. If the underlying agreement was flawed by mistake and lack of authority the court had a discretionary jurisdiction to set it aside. This jurisdiction did not disappear simply because the agreement was reflected in a final order of the court. Mr Knox invoked the metaphor used by Vaughan Williams J in Huddersfield Banking Co. Ltd. v Henry Lister & Son Ltd  2 Ch 273, 276: “To say that the Court can set aside the agreement – and it was not disputed that this could be done if a common mistake were proved – but that it cannot set aside an order which was the creature of that agreement, seems to me to be giving the branch an existence which is independent of the tree.” 58. Mr Dingemans QC (for Mrs Lundborg) contended that there was no jurisdiction to set aside the sixth order. He pointed out that neither of the Walkers had appealed against the first order, or the second order, or the fourth order. In reply Mr Knox contended that an appeal would have been inappropriate in a case like this. 59. Mr Dingemans also submitted that neither Order 31A rule 18(7), which came into operation on 1 July 2004, nor Order 45 rule 11, nor the express liberty to apply, was wide enough to enable the judge to set aside (as opposed to giving directions for working out) the first order – a final order which had been reinforced by the second and fourth orders. There had been no sufficient change of circumstances, he submitted, to justify the court in overturning its own decision. 60. The first order was not expressed as made “by consent”, but it is clear that that was its basis. Had Mr Collie not concurred in the order it would have been the judge’s duty to consider the evidence more carefully and to reach a reasoned conclusion. An order made by consent can be set aside at common law if sufficient grounds are shown, subject to the well-known principles which always constrain the court in granting discretionary relief. The Huddersfield Banking case (above) is in point; see also Ainsworth v Wilding  1 Ch 673. . 61. Their Lordships are satisfied that Lyons J did have jurisdiction, at common law, to set aside the first order on the ground of a mistake, shared by both attorneys and the judge himself, as to Mr Collie’s authority to act for Mrs Walker. Their Lordships consider that any possible procedural objection to the judge doing so in the same proceedings was waived, since this point was not taken in either court below. It is not necessary to go far into the subsidiary issues as to Order 31A, Order 45 and the liberty to apply. None of those procedural provisions makes any dramatic enlargement of the court’s inherent 18 powers: see Collier v Williams  1 WLR 1945, para 39 and Cristel v Cristel  2 KB 725, 728. None of them permits a first-instance judge to set aside a final order, whether made by that judge or by another judge of coordinate jurisdiction, without some special reason, usually involving a material change of circumstances. But a change of circumstances is not, in this context, to be interpreted narrowly. It can include the discovery of new information, even if that information was, in a sense, always available (see for instance Jordan v Norfolk County Council  4 All ER 218, 223-224). Their Lordships consider that the court’s power under Order 31A rule 18(7) was in principle exercisable in relation to an order made before 1 July 2004, but that it largely confirms and replicates the court’s inherent powers. So do Order 45 rule 11 and the liberty to apply. The Conveyancing Act point 62. As a separate (and in his submission conclusive) point Mr Dingemans relied on section 57 of the Conveyancing and Law of Property Act. This point was raised below but was not referred to in the judgments. The judge’s omission to refer to it was probably because he analysed the order for sale as essentially a contract which happened to be embodied in an order. The Court of Appeal must have thought it unnecessary to refer to the section since it concluded that there had been a judicial sale without any irregularity. 63. Section 57(1) is in the following terms: “An order of the Court under any statutory or other jurisdiction shall not, as against a purchaser, be invalidated on the ground of want of jurisdiction, or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not.” By section 2 “purchaser” is defined as including (unless the context otherwise requires) “a lessee or mortgagee, and an intending purchaser, lessee or mortgagee or other person who, for valuable consideration, takes or deals for any property.” Section 57 is based on section 70 of the English Conveyancing and Law of Property Act 1882, since replaced by section 204 of the Law of Property Act 1925. Section 70(1) was in the same terms as section 57(1). Section 70(2) was as follows: “This section has effect with respect to any lease, sale or other act under the authority of the Court, and purporting to be in pursuance of the Settled Estates Act 1877, notwithstanding the exception in section forty of that Act, or in pursuance of any former Act repealed by that Act, notwithstanding any exception in such former Act.” Section 204(2) was in similar but more general terms. 19 64. Section 57, like section 204 and its predecessor, is expressed in wide terms which have in England been held to cover a variety of court orders, including a grant of probate (re Bridgett and Hayes’ contracts  1 Ch 163) and an order authorising a sale by a receiver appointed under the Mental Health Act 1959 (Pritchard v Briggs  Ch 338). But (as section 70(2) of the 1882 Act suggests) the main function of these provisions, when originally enacted in England, was to ease the burden of investigating title for persons wishing to acquire land which had (until sale) been settled land. In England it is now becoming a matter of legal history, that before the great reforms of property law in 1925, estates for life and in tail could exist as legal estates, and before the Settled Land Act 1882 a legal tenant for life had no power to sell or mortgage the fee simple in the settled land, except with the concurrence of every remainderman, or with their concurrence being dispensed with by the court under the complicated provisions of the Settled Estates Act 1877 or its predecessors. A tenant for life might contract to sell under the protection of such an order and then find objections raised (after the terms of the order had been included in the abstract of title delivered to the purchaser’s solicitors) that some procedural error or omission had been made. Re Hall Dare’s contract (1882) 21 Ch D 41 and Mostyn v Mostyn  3 Ch 376 are striking illustrations of how selling settled land during the 19th century was beset with problems, which were a cause of real damage to the rural economy (the administration action in Mostyn v Mostyn had begun in 1861, about ten years after the publication of Charles Dickens’ Bleak House.) In each of these cases there was no dispute about the existence of a binding contract. The question was whether the vendors were able to perform their obligation to show a good title. 65. In other English cases it has been held that the provisions of section 70 or section 204 do not enable the court, by ordering or authorising a sale, to turn a bad title into a good title: Jones v Barnett  1 Ch 370; Pritchard v Briggs  Ch 338, 406-409 (a valuable review of the authorities by Goff LJ, with whom the other members of the court agreed on this point). 66. In all the English authorities, diverse though they are, there was unquestionably a contract, sometimes completed by conveyance, sometimes still uncompleted (hence the reference to purchaser or intending purchaser). Where the contract remained uncompleted the purchaser was questioning whether the statutory provisions were wide enough to ensure that he would get a good title (he might be questioning it either because he wanted to get out of the contract, or simply for reassurance as to the title). If on the other hand the contract had been completed, the purchaser or his successor in title would be relying on the statutory provisions to defend his title. Whether they did provide protection depended, in short, on whether the alleged defect in title was in the court order (or the way in which it was obtained) on the one hand or was anterior to the order, on the other hand. But in either case there was no doubt about the party’s status as a purchaser. 20 67. In the present case, by contrast, there is real doubt about Mrs Lundborg’s status as a purchaser. It is the central issue in the case. Mrs Lundborg is seeking to use section 57 to confer on herself the status of purchaser or intending purchaser which is the precondition of obtaining protection under section 57. That is a circular and question-begging process of reasoning which their Lordships do not accept. The exercise of discretion 68. Mr Dingemans’ strongest resistance to the appeal was on the issue of discretion. He relied on seven points which to some extent overlap: the need for finality in litigation; the submission that Mr Collie had ostensible authority to agree to a compromise on behalf of Mrs Walker; the Walkers’ failure to appeal against any of the first, second and fourth orders; Mrs Walker’s delay in making her application to set aside the first and second orders; the prejudice to third-party rights (those of Mrs Lundborg); the part-performance of the transaction by Mrs Lundborg; and the absence of notice to Mrs Lundborg of the alleged deficiencies in the sale order. 69. The need for finality in litigation is an important general principle: on this Mr Dingemans referred to the decision of the House of Lords in the Ampthill Peerage Case  AC 547. But it has to be balanced against the need to remedy injustice wherever possible. The need for finality means that the court starts with a disinclination to reopen concluded transactions. But it cannot by itself be decisive. There is a balancing exercise to be performed. 70. As to the issue of ostensible authority, their Lordships doubt whether it can be decisive to the exercise of the court’s discretion to set aside its order. Lyons J approached the first order as a contractual arrangement which owed little or nothing to the court’s judicial function (in the course of the argument on 7 December 2004 he is reported as having said, “Nonsense, it was not an order of the court. I have said this several times, I didn’t order anything”). It was therefore natural that he should concentrate on the issue of Mr Collie’s ostensible authority. But once the Court of Appeal recognised that the transaction was essentially a judicial sale, albeit under a consent order, the crucial questions were whether a mistake had been made, and whether (as a matter of discretion) the mistake should be put right. An attorney’s consent given with ostensible but not actual authority would still be a mistaken consent, although one which the court would be less ready to correct at the expense of third-party rights. 71. The failure of Mr and Mrs Walker to appeal against the first and second orders was excusable, since (as the judge found) they knew nothing about them until long after the time for appealing had expired. In any event it is doubtful whether an appeal against those orders would have been more appropriate than the course that Mrs Walker eventually took. The fourth order is more problematical, because by then Mr and Mrs Walker did know the facts but were still apparently represented (at least so far as Mr Walker and Mr Collie were 21 concerned) by Mr Collie. This point is addressed further in connection with delay. 72. As to delay, their Lordships have already noted (para 52 above) that in dealing with the issue of delay the judge focussed on Mr Walker to the exclusion of his wife. That was an error because it is of central importance to her case that her interest and her claim were distinct from her husband’s. His share was subject to the charging order but hers was not. He was made bankrupt but she was not. He instructed Mr Collie (and purported to give instructions on behalf of Mrs Walker also) but she never actually instructed him. The application made by Mr Lockhart on 15 June 2004 was her application, and it is Mrs Walker who had the burden of explaining and excusing her delay. The judge found that she was aware of the facts in June 2003. Even if this is corrected (as it probably should be) to July 2003 there is still a period of eleven months’ delay to be accounted for. 73. The only explanation given by Mrs Walker was in her affidavit sworn on 15 June 2004. Almost the whole of that affidavit is concerned with emphasising the absence of instructions and communications between herself and Mr Collie. By contrast she said little about the period after she learned about the sale order. She said that she was “aware of the March 2004 order” (the fourth order) but she did not say when she became aware of it. The fourth order included the dismissal of the application for a stay made by her husband’s trustee in bankruptcy. That application had been made in July 2003. It would be remarkable if her husband had not kept her informed about his financial problems, including his bankruptcy and the steps which his trustee in bankruptcy was taking in the Bahamas. Mr Rotella, who was acting as Mr Walker’s United States attorney, was also acting for Mrs Walker. But in her affidavit she gave no explanation for her inactivity after July 2003. 74. Mrs Walker was briefly cross-examined on her affidavit. She was asked by Mr Turnquest what she did when she learned the facts in June or July 2003. Her reply was: “Well, I believe I hired, we contacted Mr Lockhart, and he started to represent me shortly thereafter. I am not sure if I have the sequence of the dates correct, but ...” Mr Turnquest did not press the point. It seems doubtful that Mrs Walker can have got the sequence correct, since the fourth judgment (a copy of which she exhibited to her affidavit) shows that she and Mr Walker were still represented by Mr Collie on 23 March 2004. Mrs Walker seems to have done nothing, for eight months after learning the facts, to stop Mr Collie from continuing to claim to act for her. The most likely inference is that Mrs Walker stood back, from July 2003 until March 2004, to see whether the trustee in bankruptcy would be successful in her application, and that when it failed, Mrs Walker decided to launch her own application through Mr Lockhart. 22 75. Whether or not that is what happened, it was for Mrs Walker to satisfy the court, by a full and detailed explanation, that it should show exceptional indulgence to her. Her affidavit did not do that. No doubt Mr Lockhart took some time to brief himself about the complexities of the situation, but Mrs Walker did not provide even an outline chronology. Her affidavit left many questions unanswered. Mr Turnquest’s decision not to press this matter in cross-examination cannot supply an explanation which Mrs Walker failed to provide. 76. Mr Dingemans’ last three points all concern aspects of prejudice to Mrs Lundborg’s third-party rights. They are another factor to be taken into account, but they carry rather less weight than they might have done in other circumstances. Mrs Lundborg was not cross-examined and the judge’s findings about Mr Turnquest acting for Mrs Lundborg (rather than Mrs Cole) are not supported by either side. It would not be right for their Lordships to draw any serious adverse inferences against Mrs Lundborg. Nevertheless it seems likely that Mrs Lundborg, as an experienced business woman, must have realised from an early stage that this was an unconventional transaction. She was on notice from 21 July 2003 at the latest, and probably a good deal sooner, that it was being seriously challenged. On or before 11 July 2003 she had paid $402,000 to Mr Turnquest, but (for reasons already mentioned) he must have received it as her attorney, and he has since, it seems, repaid most of it. Nevertheless Mrs Lundborg has certainly suffered some prejudice by the disruption of her financial affairs during this protracted litigation. 77. The judge considered the issue of delay but his analysis was flawed because he concentrated on Mr Walker. Moreover he did not pay sufficient regard to the prejudice to Mrs Lundborg. He misdirected himself in exercising his discretion. In their Lordships’ opinion Mrs Walker, as a litigant asking for an extraordinary exercise of discretion in her favour, failed to act sufficiently promptly and failed to provide the court with a full and frank explanation of her delay. On those grounds the judge should have declined to make the sixth order, and the Court of Appeal were right to set it aside (although their Lordships do not concur in all the Court of Appeal’s reasons). 78. The Court of Appeal was also right, for the reasons which it gave, in setting aside the seventh order. 79. The judicial sale to Mrs Lundborg has still to be completed. Even at this late stage it may be appropriate for a wholly independent attorney to be appointed to have conduct of the sale and see it through to completion. That course may be particularly desirable if there is to be yet more litigation as to the effect on the charging order of the Florida orders of 12 April 2005 and 29 November 2007 mentioned in para 28 above. Their Lordships express no opinion whatever on that matter. 23 80. For these reasons their Lordships will humbly advise Her Majesty that both appeals should be dismissed. The parties should make written submissions as to costs within fourteen days.
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