In FS v RS and JS [2020] EWFC 63 Sir James Munby warned against trying to re-open cases after judgment has been given.  There were several attempts to re-open the judgment after it was given. It is the only judgment I have seen with two “postcripts”.


His further attempts to expand and reopen the argument are an abuse of process. Enough is enough. There must be an end to this.”

 “The sending out of a judgment in draft is not an invitation to enter into an ongoing Socratic dialogue.”


The claimant, a 41 year old qualified solicitor, brought an action for maintenance and support from his parents.  The parents had provided substantial support in the past. The claimant’s case was that, because of health issues, he was vulnerable and the court had an inherent jurisdiction.  The court rejected his argument that there was any legal basis for his claims.


The judge commented on the unusual nature of the case.

  1. This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel.” I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it.
    1. The cynic will recall the words of Diplock LJ in Robson and another v Hallett [1967] 2 QB 939, 953:
“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”
But if at the end of the day the answer is clear, as in my judgment it is, the points are not so simple as one might at first suppose. Equally in point, is the observation of Thorpe LJ in Moses-Taiga v Taiga [2005] EWCA Civ 1013[2006] 1 FLR 1074, para 21, that:
“the absence of … authority … only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.”
But is the universal assumption correct? I leave the last word to Megarry J, who in Hampstead & Suburban Properties Ltd v Diomedous [1969] 1 Ch 248, 259, said with grim humour:
“It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.”


The applicant attempted to re-open the case after the draft judgment was sent out. This was dealt with in the first postscript.

Postscript (28 September 2020)
    1. The judgment as it appears above is, with only a small number of trivial corrections, in the form in which it was sent to the parties in draft by email in the usual way on 8 September 2020. In that email I asked to be sent submissions on costs and a draft order, agreed if possible. Later the same day I confirmed that the draft judgment could be shown to the lay clients. By the end of the same day, counsel responded with their proposed corrections. The following day, 9 September 2020 I informed the parties, by email, that I would be ready to hand down the judgment on 11 September 2020 “but prefer not to until I have a draft order and submissions on costs.” By email on 10 September 2020, Mr Amos invited me to defer handing down until the following week after he had had a consultation with his clients. That I readily agreed to.
    2. It will be recalled (paragraphs 14, 15 above) that at the end of the hearing on 12 August 2020 I had asked Mr Amos whether further time was being sought to develop the Convention arguments – he told me it was not. Notwithstanding that, I subsequently received, on 14 and on 24 August 2020, two further written submissions prepared by the applicant himself. Unsurprisingly, Mr Warshaw and Mr Viney complained that each of these had caused the respondents to incur further, not insubstantial, costs. On 25 August 2020 I circulated an email to the parties, asking the applicant’s solicitors to confirm that it was not proposed to send me any more such documents (I explained that I needed to know because I was at the very point in preparing the judgment where I was about to deal with these issues). They replied the following day: “it is not proposed to send you any more such documents.” On the basis of that assurance, I completed the judgment in draft and circulated it, as I have said, on 8 September 2020.
    3. In his email of 10 September 2020, Mr Amos said this:
“Although I have not yet been able to discuss the matter with my client, I know that he is very keen, in order that he may understand your judgment better, that I ask you formally to rule on the question of whether discrimination between (1) the severely disabled children of together-parents and (2) the severely disabled children of separated and not-together-parents is objectively and reasonably justified. Whenever you decide to hand down your judgment, I should be very grateful if you would add a passage to your draft judgement in order to address this point please.”
    1. On 15 September 2020 I received a further email from Mr Amos in which, amidst much else, he said this:
“My client expressly and specifically instructs me to send to you his Invitation to reconsider and change your judgment prior to hand-down, in accordance with the principle enunciated in [In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8[2013] 1 WLR 634].”
This was set out in a Note, prepared by the applicant himself, running to some 15 closely spaced pages and referring to a number of new authorities. The Note asserts that “there are clear and obvious errors of law that need to be immediately corrected in order to avoid handing down a judgment that is “fundamentally wrong” and the enormous trouble and expense associated with a subsequent appeal.”
    1. It is important to appreciate that this latest submission is confined to the applicant’s contentions in relation to his rights under Article 2, Article 6 and Article 8 of the Convention and Article 1 of Protocol 1, read together with Article 14; that is, and I emphasise the point, the matters, and only the matters, dealt with in paragraphs 61-98 above. I emphasise the point for this reason. As will be appreciated, the structure I had adopted in my judgment was to deal first with the question of ‘reading down’ (paragraphs 48-60) before dealing with the underlying issue of incompatibility (paragraphs 61-98). I had emphasised (paragraph 50) that I approached the issue of ‘reading down’ by assuming in the applicant’s favour that without the reading down for which he contended there would be a breach of his rights on one or other of the grounds relied on under the Convention. So, as I explained in paragraph 61, given my decision in relation to ‘reading down’, my decision on the issues dealt with in paragraphs 61-98 did not and could not, nor can it now, affect the outcome.
    2. The applicant ventures the opinion that it is “highly likely that if this case had been brought in the Administrative Court, a public law Judge would have either read down the relevant statutes” – a topic on which the Note otherwise makes no submissions whatever – “or at the very least made declarations of incompatibility.” He continues:
“if the learned Judge maintains his view that section 3 reading down is impossible in the circumstances of this case, then he should promptly proceed to update and correct his draft judgment based on the above discussion and proceed to make the following declarations of incompatibility:

i. Paragraph 2(4) of Schedule 1 of the Children’s Act 1989 is incompatible with Article 14 when read with Article 8 and/or Article 1 of Protocol 1 in that it unjustifiably discriminates against the adult disabled child based on the living arrangements/status of his/her parents and insofar that it restricts entitlement to relief based on the living status of the Applicant child’s parents.

ii. Section 27 MCA 1973 is incompatible with Article 14 when read with Article 8 and/or Article 1 of Protocol 1 in that it unjustifiably discriminates against the adult child of married parents in comparison with the adult child of divorced parents and/or a child who is the beneficiary of an existing section 27 MCA 1973 financial provision order and insofar that it restricts entitlement to relief based on the marital status of the Applicant’s parents and/or whether the Applicant is the beneficiary of a pre-existing financial order.”

    1. Upon receiving this document I circulated an email on 16 September 2020 asking Mr Warshaw and Mr Viney whether it was their submission that I should embark upon a detailed analysis of these new points (in which case, I said, I would need their submissions in response), or that I should not (in which case, I said, I would need their submissions as to why I should not). Their response the same day was that I should not embark upon a detailed analysis, followed shortly after by their written submissions in respect of that proposition. They complain that the applicant seeks to reopen the entire case and reconsider every single point – which is correct so far as concerns paragraphs 61-98 of the judgment. It is, they say, a fundamental abuse of process, a waste of court resources and puts the respondents to yet further costs. So far as concerns the contention that I should grant a declaration of incompatibility, this, they say, is a volte face, Mr Amos having, as I have already noted, specifically disclaimed any such application.
    2. The applicant’s response to this arrived on 21 September 2020. The key points he made were that (i) he was not merely rearticulating the case as previously deployed on his behalf by Mr Amos – he was putting forward new points and arguments and additional authorities; (ii) those arguments demonstrated I was wrong in law; and (iii) correction of the judgment as he was proposing was appropriate to “obviate the need for a time consuming, expensive and unnecessary appeal.” Later the same day, though after hours, I notified the parties by email that I had decided not to answer the question posed by Mr Amos in his email of 10 September and not to alter my judgment as requested by the applicant. I now give my reasons.
    3. I do not criticise Mr Amos for raising the matters referred to in his emails of 10 and 15 September 2020, because I suspect he has an unusually difficult, demanding and pertinacious lay client to deal with. But I absolutely decline to go down the routes he – or rather his lay client – would have me traverse.
    4. In relation to the question posed in his email of 10 September 2020, I decline to rule on it:
i) The question as formulated is in the most general and abstract terms, and it is not the function of the court to give advisory opinions.
ii) Insofar as the question arises in relation to Article 14, I have already explained (paragraph 93 above) that I saw no need to go further into it than I had.
iii) The sending out of a judgment in draft is not an invitation to enter into an ongoing Socratic dialogue.
    1. In relation to the other matters raised by the applicant, it is remarkable that in his Note of 21 September 2020 he does not engage at all with the authorities to which Mr Warshaw and Mr Viney had appropriately directed attention in their submissions of 16 September 2020. To these I must now turn.
    2. A most valuable exegesis of In re L and the subsequent authorities is to be found in the judgment of Mostyn J in AR v ML [2019] EWFC 56[2020] 1 FLR 523. For present purposes, however, it suffices to note that the overriding objective in exercise of the jurisdiction, which undoubtedly empowers me to do what the applicant seeks, is to deal with the case in question justly.
    3. How then should I proceed?
    4. I start with the memorable observation of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5[2014] FSR 29, para 114(ii), that: “The trial is not a dress rehearsal. It is the first and last night of the show.” In WM v HM [2017] EWFC 25[2018] 1 FLR 313, para 39, Mostyn J said that:
“the demands by Mrs Carew Pole for correction and amplification of the draft judgment went far beyond what is permissible, and amounted to blatant attempts to reargue points which I had already rejected. This practice is becoming commonplace and should be stopped in its tracks in the interests of efficiency and the conservation of the resources of the court. Suggested corrections should be confined to typographical or plain numerical errors, or to obvious mistakes of fact. Requests for amplification should be strictly confined to claimed “material omissions” within the terms of FPR PD 30A para 4.6.”
In In Re I (Children) (Practice Note) [2019] EWCA Civ 898[2019] 1 WLR 5822[2019] 2 FLR 887, para 40, King LJ agreed and endorsed what Mostyn J had said, provided, she added, that the term “material omission” was taken to embrace the totality of the matters included in my judgment in In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note) [2011] EWCA Civ 1205[2012] 1 WLR 595[2012] 1 FLR 134, para 16:
” … it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process.”
She added this important observation (para 41):
” I would merely remind practitioners that receiving a judge’s draft judgment is not an “invitation to treat”, nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings.”
    1. In relation to the matters raised by the applicant in his Notes of 15 and 21 September 2020, I refuse to alter my judgment. I can set out my reasons very shortly:
i) This is a blatant attempt to persuade me to allow re-argument on the whole of the matters already dealt with in paragraphs 61-98, explicitly on the footing that the applicant wishes to put forward new points and arguments and additional authorities. It is an attempt to do the very things denounced in clear and robust terms by both Mostyn J and King LJ. The plain fact is that the applicant seeks to reargue these points because he finds my decision unpalatable and because, with the benefit of hindsight, he seemingly does not like the way in which they were argued by his own leading counsel and imagines that he can do better.
ii) As I have already explained, whatever the position may be in relation to these points cannot affect the outcome. I remind the applicant that appeals lie against orders, not judgments, so in relation to paragraphs 61-98 the appeal which he contemplates would be misconceived, inappropriate and otiose. I repeat the point already made, that the matters sought to be canvassed by the applicant cannot, for the reasons I have already explained in paragraph 147, affect the outcome. So, an appeal in relation to these matters would serve no useful purpose.
iii) The ultimate requirement is that I deal with the case justly. From the applicant’s point of view, to embark upon the further exploration of these issues can, as I have indicated, achieve nothing, whether the new arguments he wishes to deploy be right or wrong. So, I do not act unjustly to the applicant if I proceed as I have indicated. If, on the other hand, I were to proceed as he wishes, I would be acting unjustly to the respondents, significantly increasing their costs and all for nothing.
iv) The applicant’s proposal that I should now make declarations of incompatibility is completely misconceived. Quite apart from the fact that this marks a complete volte face, it is elementary that the court cannot grant such a declaration without the involvement of the Crown: section 5 of the 1998 Act and FPR rule 29.5.
    1. I add this. I had already, despite the additional burden of costs this threw on to the respondents, been prepared to indulge the applicant, not once but twice, after the argument had been concluded (paragraph 15 above). His further attempts to expand and reopen the argument are an abuse of process. Enough is enough. There must be an end to this.


The judge rejected the claimant’s argument that he should not be responsible for costs. Costs were ordered to be paid on the indemnity basis.


    1. Costs in respect of the proceedings under the 1973 Act and the 1989 Act are governed by FPR Part 28; costs in respect of the claim under the inherent jurisdiction by CPR Part 44: Redcar & Cleveland Borough Council v PR [2019] EWHC 2800 (Fam).
    2. The respondents’ costs (on which no VAT is chargeable because they are non-resident) amount in all to £74,467.50: £63,420 down to 12 August 2020; £5,730 from 13 August to 10 September 2020; £5,317.50 from 11 to 21 September 2020. Mr Viney’s submissions can be summarised as follows:
i) The starting point (see the well-known passage in the judgment of Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233, 236) is that costs follow the event.
ii) There is no reason for displacing that starting point; quite the contrary. So, costs should follow the event.
iii) Applying the principles in Three Rivers District Council and others v The Governor & Company of the Bank of England [2006] EWHC 816 (Comm)[2006] 5 Costs LR 714, para 25, confirmed by the Court of Appeal in Timokhina v Timokhin [2019] EWCA Civ 1284[2019] 1 WLR 5458, paras 56-57, this is a case where an order for costs on the indemnity basis is appropriate. “The test is not conduct attracting moral condemnation … but rather unreasonableness … Where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails.” As against that, as Mr Viney fairly acknowledges, such conduct must be unreasonable “to a high degree” for ‘unreasonable’ in this context “does not mean merely wrong or misguided in hindsight” and “whilst the pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order”: Noorani v Calver (No 2/Costs) [2009] EWHC 592 (QB), paras 8-9. The applicant’s conduct here, he says, meets those tests.
iv) There should be a summary assessment in the full amount claimed.
    1. Mr Amos says that there should be no order as to costs; alternatively, that costs should be on the standard basis, be the subject of detailed assessment and not be enforced without the leave of the court. He makes these key points:
i) I cannot in fairness depart from the assumption that I have previously, and correctly made, that the applicant is a “vulnerable adult”. This, with respect to Mr Amos, is a hopeless submission. I made a forensic assumption, to facilitate legal argument as to proper ambit of the inherent jurisdiction, that the applicant was vulnerable within the meaning of the authorities on the inherent jurisdiction. I made no finding of fact to this effect; indeed, in the order I made on 28 July 2020 the assumption was expressly stated to be “without prejudice to the respondents’ case as to whether he is.” Mr Amos also refers to the medical evidence filed on behalf of the applicant: the report of a consultant psychiatrist. Given the nature of the hearing before me on 12 August 2020, this has never been the subject of either cross-examination or submissions. Moreover, even if it be the fact that the applicant is vulnerable, it has never been suggested that he lacks capacity either to litigate or to manage his affairs; and the documents he has himself prepared demonstrate his intellectual abilities. Vulnerability does not confer a licence to litigate with impunity.
ii) The applicant, to all intents and purposes, has no resources at all whereas, in very stark contrast, his parents have very considerable wealth. That may be, but poverty or economic inequality is not, in my judgment, a licence to litigate with impunity.
iii) The starting point must be that it would be extremely unusual for the court to make a costs order against an adult disabled and vulnerable child with on-going dependency because of his disability, who had brought a needs based child support application to the court because he was being inadequately provided for by his parents. Mr Amos cites no authority in support of this proposition, perhaps unsurprisingly given that this application is unprecedented. Be that as it may, I am unable to accept an assertion which, in my judgment, is contrary to principle.
iv) The applicant previously acted through solicitors working under a legal aid certificate and would have continued his case on legal aid, but for the complexity of this matter which required the engagement of a leading matrimonial finance firm and counsel who do not undertake legal aid work. No adverse or immediate costs order would have been made against him had he still been in possession of a legal aid certificate. He should not now be penalised for the complexity of his case, which was clearly outside of his control. To this I would merely observe that the fact is that the applicant is not legally-aided and that, even if he were, this would not immunise him from the making of an order for costs, merely from its enforcement without further investigation and order.
v) The clear picture that comes out of the correspondence written without prejudice save as to costs is one of the applicant trying his best to mediate/conciliate and putting out numerous olive branches to his parents, whilst they consistently refuse to cooperate and/or negotiate and set unreasonable pre-conditions to any discussions taking place, which clearly goes against the spirit and intent of mediation. This, says Mr Amos, is an important factor which I can and should have regard to in deciding whether to make a costs order. This may be, but the simple fact is that, on my reading of the correspondence, the applicant was holding out for significant ongoing financial provision – and in that endeavour he has wholly failed.
vi) Although the respondents’ jaundiced view is that the applicant’s case was “weak, speculative and opportunistic”, and they seek indemnity costs on that basis, the applicant, as Mr Amos puts it, “would clearly not have brought this case without the assistance of expert matrimonial finance solicitors and Counsel unless he thought the case had some considerable substance to it.” While noting what Mr Amos says, the fact is that, absent disclosure of the privileged discussions between the applicant and his advisers, this can only be speculation.
vii) In relation to quantum, beyond asserting that the respondents have spent more in legal costs and over a shorter period than the applicant, there is no specific challenge by Mr Amos either to the work alleged to have been done, or its reasonableness, or the seniority of the fee-earners, or the level of fees being charged.
    1. In these circumstances, I conclude, without hesitation, that in principle the applicant should be ordered to pay the respondents’ costs. Such an order accords with principle and none of the factors identified by Mr Amos, whether taken in isolation or together, suffices to justify any different conclusion. The fact is that an adult son has chosen to make financial claims against his parents. In that endeavour he has utterly failed. There is no reason at all why he should not suffer the consequences. Fairness and justice to the respondents require such an order; in contrast, neither fairness nor justice to the applicant requires that I not make an order. He must pay their costs. And I refuse to make any order preventing enforcement without leave of the court. Such an order would, in my judgment, be unprincipled and unjust to the respondents.
    2. The more troubling question is whether costs should be on the standard or indemnity basis. I have come very close to ordering the applicant to pay all the costs on an indemnity basis but am persuaded – just – that that would be to go too far. In relation to the costs down to the end of the hearing on 12 August 2020 I shall order the costs to be paid on the standard basis. For reasons which will be apparent (see for example paragraph 158) the position from 13 August 2020 onwards is significantly different. The abuse of process to which I there referred requires that these costs be paid on the indemnity basis. In relation to the first period the costs claimed amount to £63,420; in relation to the second period to £11,047.50. I summarily assess them in the sums of £47,500 and £9,925 respectively.


The judgment also, unusually, dealt with the applicant’s contention that he would make a claim in the future.  He had indicated that a TOLATA claim was going to be made, but this issue had not been pursued to date.  A date was given by which the applicant must indicate whether an order would be made.


The TOLATA claim
    1. At the end of the hearing on 12 August 2020 I said this:
“Now the only other thing, and I suspect the answer is a matter for after judgment, is TOLATA. I raise it because, irrespective of the outcome of the current application, I would be averse for TOLATA to be hanging around there indefinitely. It seems to me that subject to submissions in due course, the respondents are entitled to know within a reasonable amount of time whether or not the TOLATA claim will be pursued. I just put it down by way of a marker, because it is something I am likely to require to be answered so it can be incorporated in my judgment.”
    1. Mr Amos argues that “having expressly adjourned further consideration of the TOLATA claim, on 28 July, and that claim not having in fact been pursued in the sense of formally issued, this Court need not and should not concern itself further with the TOLATA aspect at all.” Indeed, in his final submissions on the point dated 22 September 2020 he submits that any direction is “unnecessary and otiose” because there is “no jurisdiction or legal purpose.”
    2. I do not agree. On the contrary, in my judgment, I can and should deal with it.
    3. On 9 June 2020 the applicant registered a restriction against the title to the property and in his witness statement dated 17 July 2020, paragraphs 49-53, he set out the factual basis of his TOLATA claim, provided a draft of his claim form and specifically invited the court to give directions about it, which both Mostyn J and I have done. My order, on 28 July 2020, merely adjourned further consideration of the unissued TOLATA claim “generally” and not for any specified time.
    4. In these circumstances interesting questions might be thought to arise in relation to the well-known principle in Henderson v Henderson (1843) 3 Hare 100, most recently analysed by Nicklin J in Tinkler v Ferguson and others [2020] EWHC 1467 (QB)[2020] 4 WLR 89, paras 34-38. There are also the interesting and suggestive observations of Carnwath LJ, as he then was, in Fitzhugh Gates (A Firm) v Claudia Sherman [2003] EWCA Civ 886, paras 55-57. I note also section 49(2) of the Senior Courts Act 1981 which provides that:
“Every such court [that is, “every court exercising jurisdiction in England or Wales in any civil cause or matter”] … subject to the provisions of this or any other Act, shall so exercise its jurisdiction in every cause or matter before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided.”
    1. I can, however, and prefer to proceed on a narrower front.
    2. The applicant in my judgment cannot properly continue indefinitely to ‘sit on the fence’ whilst at the same time maintaining the restriction. Putting it bluntly, he must ‘put up or shut up.’ This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in the aphorism that you cannot approbate and reprobate, in more homely language that you cannot have your cake and eat it.
    3. I appreciate that the applicant may need time to come to a decision, and in all the circumstances I am prepared to give him a little more time. The appropriate way forward, in my judgment, is for me to include in the order I propose to make directions that (1) the applicant is to inform the respondents and the court within six weeks whether or not he proposes to proceed with a TOLATA claim and if he does (2) the applicant is within 3 weeks thereafter to issue the proceedings and serve points of claim. Failure to comply with these directions (time to be of the essence) will debar the applicant from pursuing the claim and lead to the removal of the restriction. Mr Viney submits that the periods specified should be respectively four and two, but as Mr Amos points out the respondents will not in reality be prejudiced if the applicant is given the slightly longer period, and, given the nature of the order I propose to make, it is, I think, appropriate to give the applicant that extra leeway.
Permission to appeal
    1. Mr Amos seeks permission to appeal. He does not identify any specific grounds of appeal, or even those parts of the judgment he seeks to challenge, but in his submissions on the point dated 22 September 2020 he seemed to indicate that the focus of the proposed appeal would be the points raised by the applicant since the end of the hearing on 12 August 2020.
    2. I refuse permission to appeal. There is, in my judgment, no prospect of an appeal being successful and no other reason justifying the grant of permission. I repeat what I have said in paragraphs 146 and 157(ii) – that an appeal in relation to those matters would serve no useful purpose.
    3. Mr Amos seeks an extension of time for renewing the application. He submits that the applicant “should have a sufficient time in which to consider his position and the question of any attempted appeal, rather than being rushed into making an application” and that the respondents will not suffer any prejudice if time is extended. He says that “justice cries out for a longer period than the standard 21 days.” That is hyperbole. I refuse to extend time. The judgment was circulated in draft on 8 September 2020 and the applicant has known since 22 September 2020 that I was not prepared to allow the re-argument for which he was contending. He has had plenty of time in which to consider his position and formulate it in appropriate detail. He has been treated with considerable indulgence; if he wants further indulgence, he must seek it in another place.
Further postscript (29 September 2020)
    1. On 28 September 2020 at 10am I circulated to the parties by email (a) the judgment as it would be handed down two days later and (b) the draft of the order I proposed to make. I invited counsel to identify any typographical or other corrections to paras 143-174 of the judgment or to the order. No corrections to either were identified, but Mr Amos by an email on 29 September 2020 invited me to include in the order a stay of execution in relation to the order for costs pending appeal. He justified this on the basis of what he called “pragmatic simplicity”, so that the question of costs enforcement stand or fall with the appeal process itself rather than requiring the applicant to seek additional specific relief from the Court of Appeal. That is not, in my judgment, an adequate justification for what he seeks. I refuse the application.
    2. Having, as it seemed, achieved finality, and in what I believed to be the spirit of the Covid-19 Protocol, at 4.25 on the afternoon of 29 September 2020 I circulated to the parties by email the judgment as it was to be handed down at 12 noon the following day, 30 September 2020, and the order in its final form. I was staggered to receive from Mr Amos just after 9.30 in the evening this email:
“the Court’s proposed ToLATA debarring order is, even contingently, with respect new. On behalf of the applicant I submit that, if the Court is really minded to impose such an order, it should by analogy with inter alia Children Act s.91(4) be subject to the filter of a future Court’s leave, not absolute as proposed and without limit of time, as a matter of inter alia the Applicant’s Article 6 rights.”
There was not a word of explanation as to why this new point had not been raised by Mr Amos in his earlier email, as one might have thought it could and should have been. Be that as it may, I see no reason to depart from the approach spelt out in paragraphs 170-171 or to alter in any way paragraph 7 of the order as set out below – which, I must emphasise, had been sent to the parties in this form on 28 September 2020. The suggested analogy, with all respect to Mr Amos, is wholly inapt, and his reference to Article 6 (in relation to which, I note, he cites no authority) takes him nowhere. The point, to repeat, is that the applicant cannot properly continue indefinitely to ‘sit on the fence’ whilst at the same time maintaining the restriction. He must, as I said, ‘put up or shut up.’ The respondents are entitled to know, within a specified time, whether or not he is going to pursue the claim. An order in this form is Article 6 compliant. The time I have afforded him is, it will be recalled, the very time sought by the applicant, not the shorter time for which the respondents contended. An order in the form now being proposed by Mr Amos would defeat this wholly desirable, indeed necessary, objective.
The Order
    1. Accordingly, I make the following order:
3. This Order is made further to the Order herein dated 28 July 2020 in which the Court, treating the Applicant’s application under the Inherent Jurisdiction as being before the Court even though not issued and adjourning generally further consideration of the unissued TOLATA claim, gave directions for a further hearing to determine jurisdiction in relation to the Applicant’s claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and under the Inherent Jurisdiction on the assumption (without prejudice to the Respondents’ case as to whether the Applicant is a vulnerable person) that the Applicant is a “vulnerable person” as defined in the authorities.
4. The Court’s judgment resulting from the jurisdiction hearing on 12 August 2020 was formally handed down today, in anonymised form so as not to publish the names or identifying features of any of the parties, the Judge having rejected the Applicant’s applications for (a) expanded explanation of the Court’s decision in relation to comparator groups for the purposes of discrimination and (b) revision of the draft judgment.
It is ordered that:
5. The Applicant’s applications for interim maintenance and legal costs funding orders in relation to the said claims are each hereby dismissed.
6. The Court having determined that it does not have jurisdiction in relation to the claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and that jurisdiction under the Inherent Jurisdiction cannot be exercised as the Applicant asserts, the Applicant’s claims under the Matrimonial Causes Act 1973 and the Children Act 1989 and under the Inherent Jurisdiction are hereby dismissed.
7. As regards the Applicant’s unissued claim against the Respondents, under the Trusts of Land and Appointment of Trustees Act 1996, in relation to the property at … registered at HM Land Registry under Title No … and in respect of which the Applicant lodged a Restriction on 20 June 2020:

a. The Applicant shall by 4pm on 11 November 2020 (time to be of the essence) notify both the Court (by email to Sir James Munby at …) and the Respondent’s solicitors (by email to … of Clintons Solicitors at …) whether or not he intends to pursue the claim.

b. If within the time specified above, or within such further time as may have been allowed in accordance with sub-paragraph c, he has given notice that he does intend to pursue the claim then the Applicant shall by 4pm on 2 December 2020, or within such further time as may have been allowed in accordance with sub-paragraph c, (time in either case to be of the essence) issue his application together with Points of Claim setting out succinctly the facts and matters he relies upon.

c. In the event that the Applicant fails within the time specified to comply with either of these directions then (unless the court has on application made by the Applicant before the expiry of the relevant time extended time):

i. The Applicant shall be debarred from pursuing any such claim; and

ii. The Restriction shall be removed (for which purpose the Respondents are to be at liberty to apply to HM Land Registry and/or to the Court).

8. The Applicant shall within 21 days pay (a) the Respondents’ costs down to 12 August 2020, summarily assessed on the standard basis at £47,500 and (b) the Respondents’ costs from 13 August 2020 summarily assessed on the indemnity basis at £9,925.
9. The Applicant’s applications (a) for permission to appeal (b) for an extension for the time to make an application for permission to appeal and (c) for a stay of execution in relation to paragraph 8 pending appeal are dismissed.”