HE Winros Partnership v Global Energy Horizons Corporation

Remote hand-down: This judgment was handed down remotely at 16:00 on 1 August 2025 by circulation to the parties or their representatives by email and by release to The National Archives MR JUSTICE MARCUS SMITH: The Gray Proceedings

1. The Appellant is a firm of solicitors, formerly practising under the name “Rosenblatt Solicitors” and latterly as “The Winros Partnership”. They were retained by the Respondent (“Global Energy”) in connection with proceedings in the Chancery Division against one of their former associates, a Mr Robert Gray. The action – the “Gray Action” – was in respect of the alleged misappropriation of an opportunity to develop innovative technology.

2. Global Energy were, on the face of it, successful in the Gray Action, but that victory proved to be pyrrhic. In December 2012, Vos J granted declarations that Mr Gray was in breach of fiduciary duty and liable to account to Global Energy. In July 2015, Asplin J ordered Mr Gray to pay c £3.6 million to Global Energy and ordered further inquiries as to the value of certain assets. Arnold J, when the matter came before him in May 2019, valued those assets at nil and found that no further sums were payable by Mr Gray. The retainer

3. Rosenblatt – I shall refer to them by their former name, for this was the name they used at the time of the Gray Action – were retained under three conditional fee agreements, which I shall refer to as “CFA-1”, “CFA-2” and “CFA-3”.

4. The first two agreements – CFA-1 and CFA-2 – were based on the Law Society standard terms, comprising an individuated one-page term sheet, the opening words of which stated: “This agreement is a binding legal contract between you and your solicitors. Before you sign, please read everything carefully. This agreement must be read in conjunction with the Law Society document “What you need to know about a CFA”.

5. More specifically as to these CFAs: i) CFA-1 was dated 8 December 2009 and covered the drafting of a letter of claim, review of the letter of response, drafting of a reply and mediation. (The work covered and not covered by CFA-1 is set out in greater detail, but that is not set out here.) CFA-1 then provided: Paying us You agree to pay us the sum of CAN$315,000 in £ Sterling at the exchange rate as the date of this agreement as an advance fee [“the Advance Fee”], which will be retained by us whether or not you are successful in the claim. We are responsible for the payment of disbursements as and when they are incurred, during the course of this retainer. If you win your claim, you pay our basic charges from 30 September 2009, our disbursements and a success fee. You are entitled to seek recovery from your opponent of part or all of our basic charges, our disbursements, a success fee and insurance premium as set out in the document “What you need to know about a CFA.” Credit will be given for the Advance Fee already paid, which will be set-off against the total of our basic charges and the success fee. If you lose you remain liable for the other side’s costs. The success fee The success fee is set at 95% of basic charges. In addition 5% relates to the postponement of payment of our fees and expenses and can not be recovered from your opponent. The success fee inclusive of any additional percentage relating to postponement cannot be more than 100% of the basic charges in total. Other points The parties acknowledge and agree that this agreement is not a Contentious Business Agreement within the terms of the Solicitors Act 1974 . ii) CFA-2 was dated 31 October 2010 and covered “the claim…against Robert Gray”, “Any proceedings you take to enforce a Judgment, Order or agreement” and “Negotiations about and/or a court assessment of the costs of this claim”. Appeals were expressly not covered. The rest of CFA-2 was as set out in relation to CFA-1, save that the Advance Fee was set at £1,000,000.

6. CFA-3 was dated 6 March 2013, and was not on standard terms, but bespoke. As to this agreement: i) It covered the “Claim” (clause 2.1) and “[a]ny assessment of the Client’s costs as ordered by the Court in relation to the Claim” (clause 2.2). “Claim” was a defined term (in clause 1): “The Client’s claim against [Mr Gray] in relation to accounts and enquiries and other relief ordered by Mr Justice Vos on 17 January 2013” Client, also a defined term, referred to Global Energy. ii) The rates chargeable were set out at clause 4.2, and there was provision for payment of “the Advance Fee upon completion of this Agreement. The Advance Fee is retained by Rosenblatt whether the Claim is successful or not. Credit will be given for the Advance Fee in the event that further fees are payable” (clause 4.3). The Advance Fee was £300,000 (clause 1). iii) Clause 5 set out what was to happen if the Client won; clause 6 what was to happen if the client lost; clause 7 stated the Success Fee (a defined term) at 100% of Rosenblatt’s fees (95% to reflect risk and 5% to reflect deferral of payment). iv) Clause 14 provided for the termination of CFA-3: 14.1 The Client can end this agreement in writing at any time. If the Client does not continue with the Claim, the client must pay Rosenblatt’s fees at the normal rates for the work done to the termination date and disbursements. If the Client continues with the Claim and wins, the Client will also have to pay the Success Fee for that work. 14.2 Rosenblatt can end this agreement if the Client rejects Rosenblatt’s advice to accept a reasonable offer from the Opponent [ie Mr Gray] to settle this Claim. In those circumstances, the client must pay Rosenblatt’s fees for the work done to the termination date and disbursements. If the Client continues with the Claim and wins, the Client will also have to pay the Success Fee for that work. 14.3 Rosenblatt can end this agreement if it believes the Client does not meet its responsibilities. If this happens, the Client will have to pay Rosenblatt’s fees for the work done to the termination date and disbursements. 14.4 Rosenblatt can end this agreement if it believes the Client no longer has a reasonable prospect of success. If this happens, the Client will only have to pay Rosenblatt’s fees and disbursements.

7. CFA-3 has a choice of law clause specifying the law of England and Wales (clause 16) and an entire agreement clause (clause 17). The decision of Master James and the appeal to Trower J

8. It is most convenient to narrate the relevant events through the decision of Trower J (sitting with Master Gordon-Saker (Senior Costs Judge) as Assessor) [2021] EWHC 3410 (Ch) , who determined an appeal from the decision of Master James, dated 20 August 2020 (SCCO Ref JJ1602737).

9. These were earlier decisions in these proceedings, and I therefore regard the legal conclusions stated and any material facts found as binding on me. Save where the contrary is stated or the context otherwise requires, all references in this paragraph are to the decision of Trower J: i) The outcome of the hearing before Asplin J was that Mr Gray was ordered to pay c £3.6 million to General Energy: [14]. No further amounts were ordered to be paid by Mr Gray by Arnold J, who found the assets to be valued to have a value of nil: [14]. ii) General Energy (and, it is to be inferred, Rosenblatt) considered that the technology with which the Gray Action was concerned was worth hundreds of millions of dollars. The litigation outcome that pertained indicates that this expectation was misplaced. Disagreements about the true value of both the technology and the claim, together with the limited recoveries made, played no small part in the breakdown of the relationship between General Energy and Rosenblatt: [15]. iii) Each of the CFAs – CFA-1, CFA-2 and CFA-3 – were conditional fee agreements within the meaning of section 58 of the Courts and Legal Services Act 1990 , and so were only enforceable if all of the conditions stated in section 58 were met: [20]. It was contended that the CFAs failed to meet the conditions of section 58 , and so were unenforceable. Before Master James, that contention succeeded, but it was overturned on appeal to Trower J. The detailed reasoning does not matter, but Trower J concluded (i) that the Advance Fee provided for in each of the CFAs was to be retained by Rosenblatt whatever the outcome of the litigation and (ii) that none of the CFAs were unenforceable under section 58 : [53] to [54], [69]-[71]. iv) There was a contention (both before the Master and Trower J) that Rosenblatt were in breach of the SRA Code of Conduct. That question was not determined by the Master and Trower J considered that the matter could not be determined by him: [89]. It is not a matter that is in issue before me, for the purposes of this judgment at least, and I say no more about it. v) The Master found that General Energy’s retainer of Rosenblatt terminated when Rosenblatt “sacked” their own client by a letter dated 24 February 2016. The Master found the basis for the termination was clause 14.3 of CFA-3. This finding was appealed to Trower J: [91]. Trower J held that the termination was for General Energy’s repudiatory breach of CFA-3: [96]. Trower J held that (i) CFA-3 had been terminated, (ii) not pursuant to the provisions of clause 14, but (iii) by Rosenblatt’s acceptance of General Energy’s repudiatory breach: [103] to [104], [116]. vi) There was also a question as to the status of CFA-2. The Master appears to have assumed, without so finding, that CFA-2 was terminated: [121]. Trower J found this conclusion to be erroneous, and held that CFA-2 had not been terminated, although no future performance may be due: [119] to [122]. The decision under appeal and the appeal

10. Subsequent to the decision of Trower J, this matter came before Senior Costs Judge Gordon-Saker as an eight-day hearing including a five-day detailed assessment of Rosenblatt’s costs. By his decision in these proceedings dated 29 February 2024 (SC-2016-DAT-002725) (the “Decision”), the Senior Costs Judge decided a number of points, one of which was a point that was described as “Objection 1”. The Senior Costs Judge described the point at Decision/[15]: As pleaded in the points of dispute, [Global Energy] contends that [Rosenblatt’s] bills should be assessed at nil because, when they were delivered, [Global Energy] was not liable to pay them and/or they were delivered after the termination of the retainer when [Rosenblatt] had asserted a claim for damages…As at the dates of the bills, the fees were contingent. Trower J had found that the 2012 bill was not a statute bill because, at the time it was rendered, [Rosenblatt] was not entitled to payment under CFA-2. Applying the principle that a non-statute bill becomes a statute bill only when a final bill is served, and given that [Global Energy] was not liable to pay the 2016 bill, both bills must be assessed at nil.

11. As regards Objection 1, Rosenblatt contended (i) that the Objection was ill-founded and wrong, but (ii) that advancing it as Global Energy had done, at this stage of the proceedings, constituted an abuse of process under the well-known rule in Henderson v. Henderson (1843) 3 Hare 100.

12. In the Decision, the Senior Costs Judge (i) rejected the abuse of process argument (see Decision/[20]-[42]) and (ii) upheld Objection 1 (see Decision/[43]-[66]), with the result that Rosenblatt’s costs were assessed at nil. An order consequential on the Decision (the “Order”) records at [1] that “[t]he invoices subject to detailed assessment, being [Rosenblatt’s] invoices dated 21 December 2012, 5 February 2013, and 29 February 2016, be assessed at nil”.

13. With the permission of the Senior Costs Judge, Rosenblatt appeal the upholding of Objection 1. They also seek to appeal the rejection of the abuse of process argument regarding Objection 1. The Senior Costs Judge did not give permission to appeal on the ground, and Joanna Smith J ordered that the question of permission to appeal on this ground be considered at the appeal. The appeal was heard before me over the course of two days. Unfortunately, due to the procedural complexity of these proceedings, mainly due to their sheer length and the amount of court time they have already occupied (counsel rightly characterised the proceedings as a latter-day “Bleak House”), it was only possible to hear complete submissions on the abuse of process point. The appeal in relation to the upholding, by the Senior Costs Judge, of Objection 1 is listed for November 2025. The parties were, however, agreed that it would helpful if I could hand down, in advance of this hearing, a decision in regard to the abuse of process point. This is that decision. Nothing in this decision affects in any way the determination of the appeal in relation to Objection 1, which will be the subject of a separate judgment. Approach of an appeal court to evaluative judgments of the court below

14. The parties accepted, rightly, that this was an appeal against an evaluative judgment of the Senior Costs Judge. The question was not whether in the circumstances as they were presented to the Senior Costs Judge I would have made a different decision, but whether the approach of the Senior Costs Judge was such that no reasonable judge could have taken or where the decision was legally indefensible: see (for example) Wheeldon Bros Waste Ltd v. Millenium Insurance Co Ltd , [2018] EWCA Civ 2403 ; MW High Tech Projects UK Ltd v. Outotec (USA) Inc , [2024] EWCA Civ 844 . Rosenblatt’s contentions on appeal

15. Rosenblatt contended that it was clear on the face of the Decision that the Senior Costs Judge had fundamentally misdirected himself: i) The Decision found that Objection 1 could have been included in the preliminary issues decided by Master James: Decision/[25]. I have referred, in passing, to a hearing before Master James at [8] and [9(iii)]. This was a substantial hearing, heard over 10 days in 2019, with a substantive judgment running to some 329 paragraphs handed down on 20 August 2020. ii) The Senior Costs Judge found (at Decision/[25]): …While the Claimant’s primary case was that the CFAs were unenforceable and its secondary case was that CFA-3 was wrongfully terminated by [Rosenblatt], it was able to plead an alternative to the secondary case: that if CFA-3 is enforceable and is found not to have been terminated wrongfully by [Rosenblatt], such termination was pursuant to clause 14.3 and [Rosenblatt] was entitled only to its basic charges and disbursements. [Global Energy] could easily have added a further alternative, between these two positions, that if the termination was not pursuant to clause 14.3, [Rosenblatt] was not otherwise entitled to its fees for the work done. iii) These are express findings by the Senior Costs Judge that (i) there was an earlier, substantial, hearing in 2019 at which (ii) Objection 1 could have been argued in circumstances where (iii) Objection 1 was only in fact framed and argued some four years’ later (after a substantive appeal of the Master’s decision to Trower J) before the Senior Costs Judge at a three-day hearing in 2024. iv) At Decision/[26] and [28], the Senior Costs Judge appears to determine the abuse of process point in Rosenblatt’s favour: [26] Clearly there was an intention that the court would deal with “liability” at the preliminary issues hearing, at which oral evidence might be given. While the court controlled the agenda of that hearing, it was incumbent on the parties to raise all matters which could sensibly and efficiently be dealt with as preliminary issues. That would include any alternative cases on liability. … [28] In my judgment, therefore, [Global Energy] should have pleaded what is now Objection 1 in the Particulars of Claim and, insofar as may have become necessary, sought appropriate directions from the court as to its determination at the preliminary issues hearing. v) The Senior Costs Judge then deals (at Decision/[29]-[30]) with matters that I do not need to reference, before making a statement at Decision/[31] on which Rosenblatt placed significant reliance: An important factor to which I should have regard is the nature of solicitor and own client assessments, which fall into two stages. In the Part 8 proceedings, the issue is whether the court should make an order for assessment. In most cases, this is agreed. In some cases there is an issue, usually as to the nature of the bills, which may require lengthier determination. In a few cases there will be a conflict, such as in relation to the nature of the bills or the client’s liability to payment, which can be decided only by oral evidence. In some of these cases the clients are seeking the assessment of bills which they say they are not liable for. While that may appear to be paradoxical, the practice is to determine liability as a preliminary issue to the question of whether an order for assessment should be made. If an order is made, the second stage is the detailed assessment proceedings, which follow a similar path to proceedings between the parties following an order for costs, namely the production of a detailed bill, points of dispute and replies, and a request for a detailed assessment hearing. This is an important passage. The Senior Costs Judge is saying that where there are points that are so fundamental that they go not to the amount of a detailed assessment but to whether there should be a detailed assessment at all , those points as to “liability” (as they were referred to before me) should be heard first . That is both sensible and obvious. The Senior Costs Judge was making the point that since Objection 1 went to the question of whether there should be an assessment at all , it should as a matter of general principle have been heard at the “liability” stage and – to be specific – should have been heard at the (substantial) hearing before Master James. It is not surprising that Rosenblatt should have relied so heavily on this passage, for it points strongly in the direction of a Henderson v. Henderson abuse of process. vi) The Senor Costs Judge then refers to the proceedings in this case, identifying (at Decision/[33]) “some oddities”, including this: …Although the formulation of the preliminary issues was not widened, the hearing of those issues became wide-ranging, in large part because of [Master James’] decision to allow cross-examination on any issue, so as to avoid the witnesses having to attend again. While obviously well-intentioned, freewheeling cross-examination, where the issues between the parties have not yet been identified, is likely to be more expensive to untangle than the cost of transatlantic flights. Although one would not recognise it from the Decision, this passage contains hints of the reasons why there is no abuse of process in this case in regard to Objection 1. It will therefore be necessary to return to this passage, and the “preliminary issues” and “freewheeling cross-examination” referred to, for the procedure leading up to the hearing before Master James explains why Objection 1 was not raised sooner. However, apart from this oblique reference in Decision/[33], the Senior Costs Judge takes this important point of procedural history no further in the Decision. vii) The Senior Costs Judge then expressed his conclusion on the abuse of process point in these terms (which it is appropriate to set out in full): [35] It is unfortunate, although not entirely unforeseeable given [Global Energy’s] skeleton argument, that the legal basis of the issue now raised was the subject of a statement of law by [Master James] in the preliminary issues judgment in the context of whether the termination of the retainer by [Rosenblatt] was wrongful. [36] However, this passage of the judgment is not part of any decision or part of the ratio. It was simply an excursion into the judge’s understanding of the consequences of wrongful repudiation by the client which, in the event, was not what she found. Nor was it considering whether the general principle stated did not apply where the client’s liability is conditional on an event which had not then happened. While Trower J did find that there had been a wrongful repudiation by the client, the appeal before him did not require him to adjudicate on the consequences of that conclusion. [37] Thus, Objection 1, while the subject of judicial comment, has not been the subject of a judicial decision. [38] It seems to me that it is the oddities of this case which weight heavily in the broad merits based judgment which the court must make. Had [Global Energy] raised Objection 1 before the preliminary issues hearing, the Costs Judge may have expressed the view quoted at [17] above or she may have been persuaded by [Global Energy’s] argument or expressed no view. However, it would not have resulted in a different order. The order was based on the finding that [Rosenblatt] had repudiated the retainer. The result of the preliminary issues hearing would have been the same. [39] On an appeal from the order, Trower J’s conclusion that the client had repudiated the agreement would not necessarily have resulted in a decision as to the consequences of that conclusion. He may well have left it to the costs judge, as he left [Global Energy’s] arguments that CFAs-2 and -3 are unenforceable on the grounds of illegality. [40] That itself is significant. Although the illegality issue has since been abandoned, as at the conclusion of the appeal before Trower J there was still an outstanding issue as to liability. [41] [Global Energy] can fairly be criticised for not raising Objection 1 earlier. However, there would still have been a preliminary issues hearing and there would still have been an appeal. It may be that some of the costs since the appeal would have been avoided, but any prejudice caused by that can be remedied in costs. [42] Raising the objection in the points of dispute simply followed Trower J’s conclusion on repudiation. I cannot conclude that raising it in that way at that time involved unjust harassment of [Rosenblatt]. In all the circumstances, I cannot say it is an abuse of process. Analysis of Rosenblatt’s appeal

16. On the facts as stated by the Senior Costs Judge in the Decision itself, I can see no clearer case of a Henderson v. Henderson type abuse of process. It seems to me – looking only at the terms of the Decision – that the decision to hold that there was no abuse of process is so wrong as to be perverse. For this reason alone, it seems to me that permission to appeal the abuse point must be granted, and I do so. Of course, that says nothing about the outcome of the appeal, which I now turn to.

17. It is trite that a Henderson v. Henderson type of abuse of process arises where, for no good reason, a party to proceedings fails to avail themselves of an opportunity of bringing before a court of competent jurisdiction an issue for determination, which then remains unresolved until a later point in time, in circumstances where the later resolution of the point is causative of procedural waste and inefficiency, with no sufficient countervailing justification for dealing with the point late in terms of procedural fairness or due process.

18. On the facts as stated by the Senior Costs Judge, this was a clear case where Objection 1 could and should have been raised before Master James, determined by her, so that that determination could have been considered by Trower J on appeal. That course would likely have brought these proceedings to an end some years ago, and rendered the hearing before the Senior Costs Judge and this appeal wholly unnecessary.

19. Given the process described by the Senior Costs Judge, which I have set out at [15(v)], it is incomprehensible that Objection 1 should not have been heard along with any and all other “liability” issues before Master James. Reading the Decision up to [33], the Senior Costs Judge has stated, clearly and helpfully, why (on his narrative) Objection 1 should be struck out as an abuse of process.

20. The reasoning in Decision/[35] to [41] does not justify the conclusion at [42] that Objection 1 is not an abuse of process and should not be struck out. Indeed, these paragraphs betray a misapprehension as to the point of the Henderson v. Henderson jurisdiction. The consideration given to the question whether Objection 1 had in fact been decided by Master James and/or Trower J (see Decision/[35]-[37]) focuses on an altogether irrelevant factor: the point is not whether Objection 1 was previously determined (obviously it was not) but whether the opportunity to resolve it was wrongly forsaken (which, on the Decision’s findings, it clearly was). Similarly, the consideration given to the question of whether the decisions of Master James and Trower J would have been different had Objection 1 been argued (Decision/[38]-[40]) misses the point. So, too, does the statement at Decision/[41] that the hearings before Master James and Trower J would nevertheless have taken place. Of course, that is right: but the real point is that had Objection 1 been dealt with at these hearings , then later stages in these proceedings would have been unnecessary, and considerable cost and time would have been saved for all concerned with no prejudice to due process or to a fair hearing. Indeed, the partial determination of liability issues by Trower J, without consideration by him of Objection 1, is going to make the determination of Objection 1 in November 2025 significantly harder.

21. Accordingly, but for Global Energy’s respondent’s notice, to which I now turn, I would have allowed the appeal for the reasons set out above. The respondent’s notice

22. Global Energy’s respondent’s notice raised two points, which I shall take in reverse order. The second point was that even if there had been an abuse of process, Objection 1 should not be struck out because the Senior Costs Judge had applied an appropriate sanction in the form of a costs order against Global Energy. Striking out for abuse of process is not automatic, and this court should be slow to re-visit the Senior Cost Judge’s evaluation of the appropriate response to the late-raising of Objection 1.

23. I reject this contention. As I have described, the Decision (at Decision/[42]) finds that there was no abuse at all , and there is no consideration of whether a costs order would be more appropriate than striking out. The decision in regard to costs is unreasoned. Had the Senior Costs Judge found (i) an abuse of process to exist (which he did not) and (ii) considered that costs was the appropriate sanction (which conclusion, if reached, is an unreasoned one), then I consider this would have been an error. The failure to deal with Objection 1 at the “liability” stage has unnecessarily protracted these proceedings by some years, and striking out would be – on the basis of the facts found in the Decision – the only appropriate course in this case.

24. The primary point raised by Global Energy in their respondent’s notice was that the Decision could be upheld on other grounds, namely that Global Energy could not properly be criticised (as the Senior Costs Judge did in the Decision) for raising Objection 1 as late as it did. This, clearly, is a very important point. Striking out on Henderson v. Henderson grounds is only appropriate where this is the procedurally fair course. If Objection 1 has been raised late consistently with due process, then that is a very material fact supporting (on other grounds) the decision of the Senior Costs Judge.

25. The Decision hints (in the passage set out at [15(vi)] above) at these facts, but it necessary to examine the procedural history in greater detail: i) By a claim form issued under CPR Part 8 on 1 April 2016, Global Energy applied for a detailed assessment of Rosenblatt’s costs bills. In written submissions for Rosenblatt, counsel then instructed made the procedural point (set out at [15(v)] above as the court’s standard practice) that since Global Energy were contending that they were not liable to pay any costs at all, issues of “liability” would have to be resolved first, because the determination of these issues might render a detailed assessment unnecessary. Rosenblatt contended for a stay of all detailed assessment proceedings and for the transfer of issues of “liability” to the Chancery Division. ii) In hindsight, transfer to the Chancery Division would have been a good idea. But what was obvious even then and without the benefit of hindsight was that all of the “liability” issues would need to be determined before any detailed assessment, whichever court was seised. That is the usual practice, as I have described. iii) By an order dated 16 June 2016, made without reference to or hearing from the parties, Master James made the following order: (1) The following shall be determined as preliminary issues to be heard on 23 November 2016 commencing not before 10:30am time estimate 1 full day: (a) Whether the CFAs entered into between [Global Energy] and [Rosenblatt] were valid; (b) Whether the Defendant was entitled to determine the retainer. (2) [Global Energy] shall serve particulars of its claim in respect of the preliminary issues, and in addition serve witness statements in respect of the preliminary issues by 27 July 2016 … iv) This was a major procedural error on the part of the court acting of its own motion: a) The court disregarded Rosenblatt’s suggestion – made in accordance with the court’s usual practice – of dealing with all questions of “liability” first, and staying any question of detailed assessment until after these had been determined. b) Instead, the court directed the hearing of only two preliminary issues as to liability. In doing so, the court appears to have considered that these were the only two possible issues going to “liability”. If that was the court’s thinking, it was mistaken, for Objection 1 was not identified. c) The court could and should have obliged the parties to set out their contentions on liability in pleadings, and then (in light of the issues taken in the pleadings) made appropriate case management directions. As it was, the court gave case management directions blind, directing preliminary issues when it was unknown what the issues between the parties actually were. d) In short, case management preceded pleadings, with the result that the true issues between the parties were never identified until it was too late.

26. Thus, the explanation for the late-raising of Objection 1 by Global Energy is that Global Energy (and Rosenblatt) were quite properly following the direction of the court. Courts expect their orders to be obeyed, and it would have been improper for Global Energy to shoehorn (or attempt to shoehorn) additional issues into what was expressly a preliminary issue hearing. What happened was that both Global Energy and Rosenblatt focussed (rightly) on the preliminary issues ordered, and Global Energy only came to think of Objection 1 late in the day. There is nothing in Global Energy’s conduct to criticise, and it would be unfair to prevent Global Energy from taking Objection 1 now.

27. I bear in mind that the pleading of the preliminary issues expanded to issues beyond those identified in Master James’ order, and that the Master herself permitted cross-examination on unpleaded issues at the preliminary issues hearing. This shows a loss of control of the process by the court, but this fact does not affect the conclusion that I have reached, namely that Global Energy cannot fairly be precluded from taking Objection 1 late. Disposition

28. For these reasons, which are not the reasons of the Senior Costs Judge, permission to appeal the abuse point is given, but the appeal is dismissed.