Digicel (st. Lucia) Ltd (a) Company Registered Under The Laws of St. Lucia) and Others v cable & Wireless Plc and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 23 April 2010 |
| Neutral Citation | [2010] EWHC 888 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC07C01917 |
| Date | 23 April 2010 |
[2010] EWHC 888 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Mr Justice Morgan
Case No: HC07C01917
Mr Stephen Rubin QC, Mr Huw Davies QC, Mr Stephen Houseman & Mr Rupert Allen (instructed by Jones Day) for the Claimants
Lord Grabiner QC, Mr Edmund Nourse & Mr Conall Patton (instructed by Slaughter and May) for the Defendants
Hearing dates: 20 th April 2010
Approved Judgment
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.
Mr Justice Morgan:
INTRODUCTION
This judgment deals with various matters which have arisen following the judgment I gave in this action on 15 th April 2010: [2010] EWHC 774 (Ch). That judgment describes the parties, the issues in the action, my conclusions of law and my findings of fact. I will not attempt to summarise those matters again and I will proceed on the basis that the reader of this present judgment has access to my earlier judgment.
THE ORDER (APART FROM ISSUES AS TO COSTS)
In accordance with my earlier judgment, I order that the Second Defendant do pay to the Seventh Claimant the sum of £2 by way of nominal damages for breach of contract, to be paid by way of set off against the sums payable to the Defendants, in relation to the Defendants’ costs, which will be the subject of an order in accordance with this judgment. In all other respects, I order that the claims by all the Claimants be dismissed.
COSTS
The principal matters which remain to be determined are as to the costs of the action. The Defendants say that the Claimants should be ordered to pay 100% of the Defendants’ costs of the action, to be the subject of a detailed assessment on the indemnity basis. The Defendants also say that I should order an assessment on the indemnity basis in relation to two heads of costs which were the subject of an order on Day 44 of the trial, which order left over for further consideration the basis of assessment of those costs. The Defendants have prepared a summary of their costs to 28 th February 2010 which shows a total of some £15.5m. The Defendants say that there may have been further costs which have not been picked up in this summary but which may be put forward at the stage of a detailed assessment.
The Claimants do not ask for any order for costs in their favour. They accept that they will be ordered to pay a substantial part of the Defendants’ costs. The Claimants say that the right order for costs is that the Claimants should be ordered to pay 80% of the Defendants’ costs of the action, to be assessed on the standard basis. In relation to the two heads of costs which were the subject of the order on Day 44 of the trial, the Claimants say that those costs should also be assessed on the standard basis.
There are therefore two matters which need attention in relation to costs. First, should the Defendants receive an order for payment of 100% of their costs, or something less than that? Secondly, should the costs which are to be paid by the Claimants to the Defendants be assessed on the standard or on the indemnity basis?
For the purpose of considering the points which arise, I find it convenient to address matters in the following order. I will first consider the position in relation to the claims in respect of SLU, SVG, Grenada, Barbados and Cayman and the arguments as to whether the costs in relation to those claims should be on the standard basis or the indemnity basis. I will then consider the points arising in relation to the claims in respect of T&T. I will then consider the points arising in relation to the claims in respect of TCI. At that stage I will stand back and consider what order or orders for costs I should make having regard to all the considerations which have emerged in my discussion of the earlier topics.
SLU, SVG, GRENADA, BARBADOS AND CAYMAN: COSTS
The provisions of the CPR which are relevant are those contained in Rules 44.3, 44.4 and 44.5, which are in these terms:
Court's discretion and circumstances to be taken into account when exercising its discretion as to costs
44.3
(1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(3) The general rule does not apply to the following proceedings –
(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or
(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).
(8) 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.
(9) Where a party entitled to costs is also liable to pay costs the court may assess the costs which that party is liable to pay and either –
(a) set off the amount assessed against the amount the party is entitled to be paid and direct him to pay any balance; or
(b) delay the issue of a certificate for the costs to which the party is entitled until he has paid the amount which he is liable to pay.
Basis of assessment
44.4
(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –
(a) on the standard basis; or
(b) on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(Rule 48.3 sets out how the court decides the amount of costs payable under a contract)
(2) Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue; and
(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.
(Factors which the court may take into account are set out in rule 44.5)
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.
(4) Where –
(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or
(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis, the costs will be assessed on the standard basis.
(5) Omitted
(6) Where the amount of a solicitor's remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 19741, the amount of the costs to be allowed in respect of any such...
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