Days Healthcare UK Ltd v Pihsiang Machinery Manufacturing Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 2006 |
| Neutral Citation | [2006] EWHC 1444 (QB) |
| Docket Number | Case Nos: CW0508597/CW0508599/CW0508601/CW0508602/CW0508603 |
| Court | Queen's Bench Division |
| Date | 16 June 2006 |
[2006] EWHC 1444 (QB)
The Honourable Mr Justice Langley
Case Nos: CW0508597/CW0508599/CW0508601/CW0508602/CW0508603
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SUPREME COURT COSTS OFFICE
Mr Stephen Auld QC (instructed by Lovells) for the Claimant
Mr Robert Marven (instructed by Hammonds) for the Defendants
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Hearing date: 15 th June 2006
Approved Judgment
THE HONORABLE MR JUSTICE LANGLEY
The Hon. Mr Justice Langley :
The Applications
There are 2 Applications before the court. The first is by the Claimant (to whom I shall refer as "Days") to permit further evidence to be adduced on Days' application for permission to appeal a judgment of Costs Judge Wright given on 23 March this year; the second application is for that permission to be granted. I ordered that both applications and, if permission were granted, the appeal itself should be heard together today. I did so partly because the applications relate to and may affect an assessment of costs due to commence by way of a hearing of certain preliminary issues over 3 days commencing on 19 th July, and partly because the application for permission itself seemed to me at first blush to raise potentially important questions and so would itself involve consideration of the merits.
The Costs Judge refused permission to appeal on the basis that his decision was a case management decision and he saw no real prospect of an appeal succeeding. As will be seen, I do not agree.
Background/Facts
The essential background and facts, sufficient to address the applications, are as follows.
Days claimed against the Defendants (as I shall call Pihsiang and Mr and Mrs Wu) for damages for repudiation of a distribution agreement. The claim was tried before me in late 2003. The agreement in issue was subject to English law and contained a non-exclusive English Jurisdiction Clause. I handed down my judgment on 29 January 200Days succeeded (in part) on their claim. I was very critical of the conduct and evidence of the Defendants. On 16 February 2004 I ordered the Defendants to pay Days a sum in excess of £10m by way of damages and to pay the costs of the action to be assessed if not agreed. I also ordered the Defendants to pay Days an interim payment on account of costs of £2m pursuant to CPR Part 44 rule 3(8). That rule provides that where the court has ordered a party to pay costs it may order an amount to be paid on account before the costs are assessed. The salutary object of the rule is to enable a party to recover at least a substantial part of his expenditure on costs before (and to an extent in the hope of avoiding) what can be a protracted and expensive process in carrying out a detailed assessment. It also is intended to provide a useful sanction and discipline generally in the context of the costs of litigation. In this case I said that the total figure for Days' costs, then put at some £3.9m, did not surprise me and expressed the now seen to be forlorn hope that an order in the sum of £2m would enable the parties to settle the final figure without the need for a detailed assessment. The bill of costs, I am now informed, is in fact in a sum approaching £4.7m.
I refused the Defendants permission to appeal. On 13 July 2004 the Court of Appeal did grant permission but only on conditions that the Defendants paid Days itself both the principal and interest due on the judgment sum and the interim payment costs order and also paid into court £150,000 security for the costs of the appeal. Each payment was ordered to be made by no later than 24 August 2004. The Defendants paid nothing. In accordance with the Court of Appeal's Order the appeal was therefore struck out on 13 September 2004.
That remains the position today. Nothing has been paid. Nor is it a case of want of means. The Defendants have the means but refuse to pay. They choose not to pay and challenge not just Days but the court to make them do so. Days applied under CPR Part 71 for Mr Wu to give evidence as to his means. Mr Wu failed to attend when ordered to do so. He was found to be in contempt and committed to prison for 28 days by Wakerly J in an order dated 23 July 2004. Both Mr and Mrs Wu were ordered to attend court on 7 October 2004 and both failed to do so. A final order of committal was then made against Mr Wu by Gibbs J and a suspended order against Mrs Wu. She failed to attend again on 18 January 2005 and a final 28 day committal order was then made against her by Field J.
The costs of Days associated with the applications to the Court of Appeal and the Part 71 applications are said to be slightly in excess of £350,000.
The Further Evidence
I cannot sensibly refer to the steps taken by Days to enforce the court's orders against the Defendants in Taiwan without referring to the Witness Statement of Sonya Hsu which is one of the statements the subject of Days' (opposed) application to rely on further evidence. Each party in effect accuses the other of being economical with the truth about the proceedings in Taiwan. There can be no argument that some of the events in those proceedings played a part in the submissions to and decision of the Costs Judge. The Defendants' evidence in the proceedings before the Costs Judge came in very late albeit they blame Days for being late with their evidence to which it was responsive. I can see no good reason why this court should not have before it the accurate information so far as it is material and which is largely incontrovertible and I therefore propose to grant the application. I would add that the Defendants have responded to the new evidence and I have also taken that response into account. The other witness statement sought to be relied upon by Days does no more than exhibit a Transcript of the hearing before the Costs Judge and a copy of his Approved Judgment. It also makes the point that certain interim costs orders made by the Costs Judge against the Defendants in an amount of £31,600 plus interest which should have been paid on 13 April have also not been paid. Again, I can see no reason not to admit this evidence and indeed every reason why it should be before the court and I propose to allow the application in relation to it also.
Taiwan
To return, then, to Taiwan, but with this introduction. In the course of imposing the conditions which he did upon the permission granted to the Defendants to appeal to the Court of Appeal, Dyson LJ said:
"To put the matter more broadly, the defendants' conduct in refusing to comply with court orders that have been made, without explanation, and their behaviour in relation to the CPR 71 matter, strongly suggest that they will place every obstacle they can in the path of an attempt by the claimants to enforce the judgment."
That "strong suggestion" is more than borne out by subsequent events here and in Taiwan. I have no doubt at all that the Defendants will not honour any orders which involve payment or of which they otherwise disapprove made by any court in this country and will pay nothing unless and until the legal machinery in a country where they have assets successfully executes an order against those assets. They have, in contrast, paid and no doubt will continue to pay the legal and other costs incurred on their own behalf in this country and in Taiwan in whatever proceedings seem to them to be of benefit to them or damaging to Days.
At the end of November 2004, Days sought to enforce this Court's Order in Taiwan. The procedure is by way of a Recognition Lawsuit – in effect seeking recognition of the order of the English courts by the courts of Taiwan. Days has been required in the course of the procedure to deposit the substantial sum of £4.5m as a bond. On 25 November 2005, and despite opposition from the Defendants on a number of grounds, the District Court in Hsinchu found in favour of Days. But in late December the Defendants appealed as of right to the High Court. At about the same time Days attached assets of Pihsiang which were only released when a bond by way of bank guarantee was provided by the Defendants in the sum of about £14m...
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