Constantin Medien AG v Bernard Ecclestone and Others (4) Alpha Prema Uk Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Vos |
| Judgment Date | 2013 |
| Neutral Citation | [2013] EWHC 2519 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC11C02586 |
| Year | 2013 |
| Date | 2013 |
[2013] EWHC 2519 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Vos
Case No: HC11C02586
I now have to deal with the costs of this application. I do so at 11.15am on what has become the third day of this case, with another application starting at 11.30am so I shall do so briefly.
There are six matters that I have to deal with: first the question of the respondent's costs of the hearing before me; secondly the respondent's costs of the production exercise which will now take place; thirdly the first defendant's costs of the hearing before me; fourthly the second and third defendants costs of the hearing before me; fifthly the claimant's costs of undertaking that whole exercise of part 31.17 non party disclosure; and sixthly the costs thrown away, if there are any, by the adjournment of the trial. Those final costs arise because Mr Bools QC for Bambino submits that the delay in the start date of the trial from 7 October to 28 October 2013 may necessitate the instruction of new leading counsel for the third defendant.
The rules that are applicable to the various applications are contained in part 46.1(2) of the new CPR in the supplement to the White Book and part 44.2 of the new CPR replacing what used to be part 44.If I had more time I would recite both those rules in this judgment but I do not and therefore I will not.
The part 46.1(2) provision does, however, state that the general rule is the court will award the person against whom a part 31.17 order is sought that person's costs of the application and of complying with any order made and will only make a different order having regard to all the circumstances, including the extent to which it was reasonable for the person against whom the order was sought to oppose the application.
The first matter: the respondent's costs of the hearing: As it seems to me Mr Hollander is right to submit that he was broadly successful in the sense that his clients always said that they would make some disclosure that complied with the law and the categories sought by the claimant were very broad indeed and many of them were either disallowed or confined considerably. Had the claimant spent more time, as I said perhaps half jokingly in the course of the submission, reading the chapter in Mr Hollander's book (which, if I may say so, is an excellent chapter summarising the present state of the law), they would have been able to tailor their application far more carefully so as to bring it within the tests set down by Chadwick LJ inThree Rivers District Council & Ors v. The Bank of England [2004] EWCA Civ 218 which I have broadly applied.
For that reason, therefore, I do not think that the respondents behaved unreasonably in such a way as to deprive them generally of the costs of attending and resisting the application. It is true that they did so with great gusto and incurred significant costs in doing so. One particular point of criticism is that Mr Geoff Nicholas put in a very substantial 75 page statement, in which he dealt with each of the categories in detail; certainly parts of that statement was rather less helpful than other parts, although Mr Hollander submits, and there is some basis for this submission, that those parts were necessary to deal with the factual case in relation to each of the very broad categories sought.
Overall, applying part 46.1, it does not seem to me that the court should, in this case, make a different order from that normally required having regard to all thecircumstances including in particular the extent to which it was reasonable for the respondents to oppose. The claimants have, I am afraid, rather been the authors of their own misfortune in this by not setting out their application with a detailed carefully drafted schedule of the documents sought. Even now Mr Blayney QC for the claimant submits it is easier for the respondents to see what categories should be ordered than it is for the claimant. Whilst that has an element of truth, the claimant's categories were really far too wide at the outset and it was, I am afraid, reasonable for the respondents to seek to cut them down. In that exercise, they have been broadly successful.
I come then to assess the costs that it is reasonable for the claimant to pay. Those costs are set out in a revised detailed schedule showing they have spent some £337,000 odd for the three days of the hearing and the preparation of the evidence in support of it. I do feel that the amount of work done by the leading partner, Mr Nicholas, and by the senior associate, Ms Wong, was on the upside of reasonable. It was extremely efficient. What I am saying is that the extremely dedicated way in which they treated the application in leaving no stone unturned could be regarded as a little more than was entirely reasonable for another party to pay. So I am going to assess those costs, doing the best I can to take account of all these matters. I assess the respondents' costs at £250,000, which sum is to be payable by the claimant to the respondents within 28 days.
The second matter: the respondent's costs of the production exercise: I have been provided with a further draft schedule of these future costs. This is not resisted by the claimants and obviously it could not be. The schedule shows £263,000 odd in respect of future costs. I do not have to assess those, but I intend to order a payment on account of £125,000 also to be paid within 28 days to the respondents. It seems to me that the costs may turn out to be rather different now that the exercise has been limited in the way that I have limited it, and if there are greater costs they will obviously have to be paid but that will appear in due course. Nobody in this case is so short of money that I need to be concerned that the exercise cannot be conducted without payment.
The third matter: the first defendant's costs of the hearing before me: The first defendant submits that he was successful on this application because he came to meet an application for disclosure which application against him failed. That is true. The defendant's costs put in by Mr Miles amounted to a total £142,000 which compares slightly unfavourably with the claimants and the respondents costs for the same hearing considering that Mr Miles' written submissions and oral submissions, and indeed the evidence prepared by Herbert Smith Freehills, was far less extensive. I do not make any criticism of that. I think they behaved entirely properly and proportionately in limiting what they said but it does make their bill of costs look quite substantial in the circumstances. Sometimes it is a very good use of solicitors' and barristers' time to spend time thinking about what they should not say rather than what they should say, so I would not want that to be taken as a criticism.
As regards the principle it seems to me that the claimant must pay the first defendant's costs of the application that it lost. There really is nothing more to be said under part 44.2 of the CPR. They lost the application. It was an application that should not have been made and they must pay the costs.
As regard to the balance of the costs, namely the first defendant's attendance at the non party disclosure hearing, which was the bulk of what really happened, it seems to me that Mr Miles is wrong to suggest that he was only here because the application was made late and the trial date was in issue. There is no doubt that there was considerable co-operation between the respondents and the first defendant as you would expect in the circumstances. I have no doubt that Mr Miles would have come to this application and done his best to resist it, perhaps by the moderation that he showed in the course of the hearing, whatever happened. In those circumstances it seems to me that the proper order for Mr Miles's costs of coming along to see what happened and put his case in order to push me in the direction that he wanted me to go is in fact appropriate to be regarded as costs in the cause.
Much of this hearing, it should not be forgotten, has really been the pre-trial review that was ordered to take place next Monday. It is undoubted that that pre-trial review would have taken place had the order I have now made not been made. Many of the applications I have dealt with were concerned with issues of trial management. There will be a very substantial order resulting from today's hearing. Hopefully, it will set the matter up for a smooth trial period next term, which would otherwise not have been the case. In those circumstances I intend to order that the remaining part of the first defendant's costs should be costs in the case.
I now have to make an estimate of which part of the further £142,000, by way of the first defendant's costs, is properly attributable to the application for disclosure against Mr Ecclestone personally. It is quite hard for me to do that without too many details. If one may be permitted a Latinism, I am searching for atabula in naufragio, but I assess the amount that is attributable to the application for disclosure at £60,000 which shall be paid by the...
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