22 The fact that I have found that most of the matters which Mr Peter Maatouk asserted were breaches of the lease by the plaintiff were not breaches, or had not been established to have been breaches, indicates that in refusing to countenance the possibility of a different view, the defendant adopted an intransigent approach to the litigation. I also consider that the correspondence from Mr Peter Maatouk was couched in terms which were calculated to inflame the dispute between the parties. This may well have been due to his personal involvement in the dispute, but that is no excuse for the correspondence.
23 Many of the assertions made by him in his correspondence were unfounded. His correspondence showed a lack of respect for the solicitors with whom he was dealing. It was unprofessional to say the least. Its tone was not in any way justified by the correspondence from Messrs Conomos & Spinak, who, in the circumstances, showed remarkable forebearance.
24 However, it is not the unprofessional tone of the correspondence which I consider to be relevant to the costs issue, but its tendency to inflame the dispute so as to minimise the prospect of a negotiated resolution. Notwithstanding those considerations, I do not consider that an indemnity costs order in favour of the plaintiff is appropriate. I do not think the plaintiff should receive its costs on an indemnity basis when it has not been wholly successful. However, the matters to which I have referred are such as to make it appropriate to order that instead of paying seventy-five percent of the plaintiff's costs, the defendant should be ordered to pay ninety percent of the plaintiff's costs on a party and party basis.
25 The next question is whether an order should be made against Mr Peter Maatouk that he pay the costs personally. The only basis upon which such an order could be made would be in the exercise of the Court's supervisory jurisdiction over its officers including solicitors (see Pt 52A r 4 subrules 2 and 5(e)). Thus it is necessary to put out of consideration such conduct by Mr Peter Maatouk as was not engaged in in his capacity as a solicitor. In substance, that limits the matters to be considered to Mr Maatouk's correspondence.
26 I have taken that correspondence into account in the way I have indicated, in forming a view as to the appropriate costs order to be made against the defendant. I do not consider that it is such as to warrant a personal costs order against Mr Maatouk. I should add that it was not suggested that the defendant would be unable to meet the costs order, or that there were grounds to apprehend that it would be unable to meet the costs order. This is therefore not a case in which a solicitor has maintained litigation on behalf of a client and thereby exposed the opposite party to the risk of incurring costs which may be irrecoverable from the solicitor's client. (Compare Cahill v Ekstein (5 June 1998, unreported.) I decline to make an order for costs in relation to Mr Peter Maatouk personally.
27 The final question on costs is whether or not an order should be made pursuant to Pt 52A r 9(3) that the costs be payable forthwith. The judgment of 5 May 2005 followed a hearing over four or five days and dealt with most of the issues between the parties. There are certain remaining issues that still need to be determined, and it may be some time before they are determined as the proceedings are no longer expedited. In those circumstances I consider that justice demands that the costs which I order to be paid, be paid forthwith after agreement or assessment and that such costs may be assessed forthwith.
28 Accordingly, I order that the defendant pay ninety percent of the plaintiff's costs of the proceedings including any reserved costs, and that such costs be payable forthwith.