Berezovsky v Abramovich
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Stanley Burnton,Lord Justice Laws |
| Judgment Date | 24 March 2011 |
| Neutral Citation | [2011] EWCA Civ 484 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/1744 and A3/2010/0944 |
| Date | 24 March 2011 |
[2011] EWCA Civ 484
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(SIR ANTHONY COLMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Longmore
and
Lord Justice Stanley Burnton
Case No: A3/2010/1744 and A3/2010/0944
Ms Helen Davies QC and Daniel Jowell (instructed by Skadden, Arps, Slate, Meagher & Flom (UK) LLP) appeared on behalf of the Appellant.
Mr Richard Gillis QC and Simon Colton (instructed by Addleshaw Goddard LLP) appeared behalf of the Respondent.
I, for my part, would grant permission to appeal in this case on costs but, for reasons that I will shortly give, I am also minded to dismiss the consequent appeal.
This is the last aspect of the appeal that we heard in the early part of this year. We disposed of the substance in the form of a judgment dated 23 February 2011 and upheld the decision of Sir Anthony Colman on all aspects of the case except one which related to the second alternative restitution claim.
There remains an application for permission to appeal, which as I have said I for my part would wish to grant, against the order Sir Anthony made in respect of the costs, which were very substantial, after the hearing of the various applications and counter-applications. Essentially Sir Anthony decided (I am summarising with not complete accuracy no doubt) in a carefully calibrated judgment that Mr Berezovsky should pay the costs of and occasioned by his amendment applications, including costs which were incurred by Mr Abramovich but which would not have been incurred if the final amendment application of 7 August 2009 had been issued on or before 13 July 2009, save that Mr Abramovich was to pay the costs of the hearing of 2 to 13 November and 31 March 2010. Mr Abramovich was then to pay the costs of his strike-out applications, save that all costs incurred by either party in preparing evidence and investigating facts for the trial were to be costs in the case.
Mr Abramovich submits that this order does not reflect the fact that his strike-out applications were, as Ms Davies QC on his behalf put it, entirely justified until the amendments of 7 August 2009 put Mr Berezovsky's case on a properly appealable basis. He accordingly seeks the costs of his applications up until 7 August 2009 and he is right to say that it was not until 7 August 2009 that it was clear that Mr Berezovsky was relying on joint activity or sui generis agreement, as described in paragraph 31 of my original judgment with which Laws and Stanley Burnton LJJ agreed. It is also right to say that the evidence which formed the basis of that plea was served in April 2009, although no amendment to bring the pleadings into line with that evidence was then made.
The fact, however, is that even after 7 August Mr Abramovich did not abandon his strike-out applications and then seek the costs to date. He vigorously continued to pursue his strike-out applications, which were ultimately defeated. Sir Anthony set out in paragraph 18 of his judgment the grounds on which the strike-out application was made and he set out there ten separate grounds.
Ms Davies submits that the correct approach was set out by Sir Anthony in paragraph 7 of his judgment on costs, namely that as a matter of principle, although a defendant who successfully defeats such an application is...
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Iain Lawrie Shearer and Others v Spring Capital Ltd (First Defendant) (a) Tenon Pension Trustees Ltd and and Another (Second Defendants) (a) Tenon Pension Trustees Ltd and and Another (Third Defendants)
...but (b) the court may make a different order. 20 The claimants refer to Berezovsky v. Abramovich [2011] EWCA Civ 153 and, as to costs, [2011] EWCA Civ 484 where the Court of Appeal re-affirmed the general rule that where a party loses a strike out application as a matter of principle it sh......