St Vincent European General Partner Ltd v Robinson & Ors

1. In a judgment dated 24 th May 2018 ( [2018] EWHC 1230 (Comm) ) I held that the existing defendants were entitled to summary judgment dismissing the claimant’s claims against them; and I dismissed the claimant’s application to re-amend its Particulars of Claim against the existing defendants and to add five proposed new defendants to the claim.

2. The parties agree that the claimant must pay the defendants’ costs. In the case of the 13 th and 14 th defendants, figures for those costs have been agreed in the sums of £22,000 and £20,000 respectively. It remains to deal with applications by the other defendants (the Robinson defendants, the Nicholson defendants, KFTP and Picton Jones) for an order that their costs should be assessed on the indemnity basis and for payments on account; and by the claimant for permission to appeal. Costs

3. It is well established that the essential test for deciding whether costs should be assessed on the indemnity basis is whether the circumstances are such as to take the case “out of the norm”: Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a Firm) [2002] EWCA Civ 879 at [19] and [32]. The applicable principles were summarised by Tomlinson J in Three Rivers District Council v Governor & Company of the Bank of England [2006] EWHC 816 (Comm) at [25]. I apply these principles but need not repeat them. They are well known.

4. So far as the existing defendants are concerned, the appropriate order in my judgment is that (save to the extent that costs have already been dealt with by any previous order) the claimant must pay the defendants’ costs of the action up to and including 9 January 2018 on the standard basis and that costs thereafter must be paid on the indemnity basis. The judgment of Phillips J ( [2017] EWHC 3267 (Comm) ) dated 15 December 2017 and the refusal of permission to appeal by Flaux LJ on 9 January 2018 made it clear that the claim did not meet the standard of a good arguable case. The claimant nevertheless chose to continue with the action, deploying essentially the same arguments and the same evidence, and not surprisingly receiving the same answer. Although the judgment of Phillips J did not give rise to any issue estoppel, as I explained at [55] of my judgment, so that the claimant could not be prevented from insisting on a rematch, fairness requires that the defendants should be fully compensated for the costs incurred by them in fighting the claim all over again. This was an unusual situation which clearly takes the case “out of the norm”.

5. To the extent that the claimant sought to re-amend its Particulars of Claim against the existing defendants and to add new defendants, I held at [106] to [113] that this was an arguably time barred claim, made far too late, for which there was no proper evidential basis. Those features of the case reinforce the appropriateness of an order for indemnity costs so far as the existing defendants are concerned and render such an order appropriate in favour of the proposed new defendants.

6. Finally, there is in my judgment force in the defendants’ submission that the claimant has chosen to conduct this case in a particularly aggressive manner, which has inevitably increased the burden of costs. Payments on account

7. The principle of payments on account of costs is not disputed. The only issue is as to the quantum of such payments. Having considered the parties’ submissions and schedules of costs, I order that the following payments on account be made within 14 days of the date of this judgment: (1) to the Robinson defendants, £320,000; (2) to the Nicholson defendants, £170,000; (3) to KFTP, £15,000; and (4) to Picton Jones, £50,000. Interest on costs

8. I make no order for interest on costs in favour of the Nicholson defendants, the only defendants to seek such an order. The interest claimed is in any event very modest. Permission to appeal

9. The claimant’s application for permission to appeal is refused. In my judgment an appeal would have no real prospect of success. Stay of costs orders

10. I refuse a stay of the costs orders pending an application to the Court of Appeal for permission to appeal. In circumstances where the claimant has itself referred to funding difficulties and there is some uncertainty as to the extent to which the claimant’s ATE policy will be available to meet the costs of the defendants, I see no reason why the defendants should not be entitled to enforce the orders which I have made. The claimant has not offered an undertaking from its ATE insurer that the defendants’ costs will be paid which, in my judgment, would be the minimum requirement in the circumstances of this case for any stay to be considered.