The Appeal hearing over the right to exhume Father Jarzebowski set for Wednesday 28 March 2012 may well be adjourned not only because of all the satellite claims hearings and appeals set for the forthcoming year, but more as a result of vital fresh evidence emerging (involving the Marians) regarding the alleged "fraudulent" misrepresentation over a conveyance (i.e. Fawley Court and other properties).
Having dismissed Richard Butler-Creagh's claim for £5million against Aida Dellal Hersham, and Cherrilow Ltd in the July 2011 trial, when Justice Eady awarded costs and damages of £7.5million for Cherrilow and Hersham, the tables have now been turned – on Cherrilow (and possibly Mrs Hersham).
On 9 December 2011, in The Court of Appeal, Civil Division, Lord Justice Roberts issued the order that the application by Richard Butler-Creagh to appeal be granted. James Weale, Counsel, instructed by Solex Legal Services, for Butler-Creagh had twice resisted Cherrilow's attempts to quash the appeals applications.
Lord Justice Richards in a detailed 25 point judgement was not convinced by Stephen Auld's QC (instructed by Grosvenor Law, for Cherrilow Ltd) arguments seeking to topple Butler-Creagh's right to appeal. Put simply; James Weale ,Counsel, contended that at the 2011 July trial, Cherrilow "submitted a general assortment of UNEXPLAINED invoices." Butler-Creagh, he argued, never had a chance at his 2011 July trial to question this "schedule" of unquantified costs. Even Justice Eady recognised in para 112 of his trial judgement that;" Butler-Creagh did not have the opportunity to test or challenge the (£7m) costs schedule. Mr Weale further argued that "Butler-Creagh was deprived the normal opportunity at trial to test the figures or the evidence relied on." Butler-Creagh will now get his chance.
The Appeal date has not yet been listed, but FCOB Ltd., understand from Mr Weale's Chambers, 3 StoneBuildings, that it is likely to be set for October/November this year.
"This is a curious case" says Justice Eady in a separate (Fawley Court) "satellite" hearing of 20 December 2011. Essentially, the matter(s) before Justice Eady were to do with, conflicts of interest, indemnity costs, party conduct, and non, or late disclosure of 'privileged, lien' documents, all stemming from the 2011 July trial.
The claimant, Cherrilow Ltd sought an order against Osmond solicitors, and Butler-Creagh seeking that they disclose their files which Cherrilow Ltd "considered were necessary... in a claim for 'fraudulent misrepresentation' over a conveyance"... (Fawley Court!). In a written direction Justice Eady ruled that Cherrilow Ltd had now got "their files/documents" from Osmonds, and awarded £75,000 interim payment for Cherrilow, but, "subject to further submissions."
And so the Dickensian, Bleak House costs, costs, and more costs goes on. It seems that the Fawley Court High Court merry-go-round just goes on and on. Meanwhile, it is imperative, and highly likely – given all these satellite claims, actions, hearings, and appeals – that the Father Józef Jarzębowski Appeal must