ii)
He is not entitled to be indemnified in respect of his own time under Clauses 9
(as set out in Judge van Gestel’s opinion);
iii)
If an order for costs is made in favour of the Claimant at the conclusion of the
trial (and I cannot make such an order at this stage as there may be relevant
matters of which I am presently unware) then he may be able to recover sums
to reflect his own time spent on the case in the usual way. This will be a matter
for the costs judge on the assessment.
106.
Finally, I turn to the sums paid under the Contract which the Claimant says that he is
entitled to recover under Clauses 5 and 8. Mr. Darton submits that the court should
conclude that the Claimant’s evidence is wholly unreliable on this issue and that he
should not therefore recover anything.
107.
Mr. Darton’s submissions were that the way that the quantum of the claim was
presented was inconsistent, Mr. Chudson had not produced any documentation from
which his expenses and fees could be assessed as being reasonable and the Claimant’s
original pleading, and Mr. Chudson’s final fee, suggested that the Claimant had
abandoned part of the claim (his own time) but then added it to Mr. Chudson’s
charges. This latter point would require Mr. Chudson to have colluded with the
Claimant.
108.
On 11th August 2016 Mr. Chudson sent a letter to the Claimant which purports to set
out what he has been paid. It states that he has been paid in full for all expenses he has
incurred and all his time expended on research and prosecution of the holocaust
claims. He sets out all payments, whether in respect of work for the Claimant alone or
for work covered by the Contract. He apportions 90% of the work to the Contract and
this leads to a total sum of $71,366.45. Mr. Oliver submitted that each payment is
vouched by wire transfer instructions and receipt for payments or by credit card
statements where card payments were made. These documents are in the bundle. I
have not checked them, but this has not been challenged by the Defendants during this
trial and I therefore find that these sums were paid to Mr. Chudson and that the figure
above is 90% of the total amount paid.
109.
As Mr. Darton submits, these sums were paid after proceedings had been issued (29 th
April 2016). He referred to the following discrepancies from the final figure:
i)
In the letter before action dated 1 st March 2016 the sum claimed was 50,000
euros already paid and a further estimated 26,000 euros. A further sum of
20,000 euros for the Claimant’s services and expenses. It is to be noted that all
that the Claimant is saying at that stage is that a sum has been paid and that
further sums are due which is, at that time, only an estimate. It is not therefore
reasonable to criticise the Claimant for misstating the sum due.
ii)
In the original Particulars of Claim it is pleaded that the Claimant has made
payments of $38,338.31 between 30th October 2014 and 24th November 2015.
Mr. Darton submitted that this was “a lot less than 50,000 euros” and that the
Claimant and Mr. Chudson had not settled the sum due. That is correct, but the
pleading says no more than that the Claimant has paid this sum. It is however
clear from the documents that significant payments were made by the
Claimant to Mr. Chudson in January and February 2015 (I have identified at