Eva Green v White Lantern Film (Britannica) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Michael Green |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1391 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: BL-2020-000880 |
and
[2023] EWHC 1391 (Ch)
Mr Justice Michael Green
Claim No: BL-2020-000880
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch D)
Edmund Cullen KC and Amanda Hadkiss (Instructed by Archerfield Partners LLP) appeared on behalf of the Claimant
James Goodwin and Lemuel Lucan-Wilson (Instructed by Mishcon de Reya LLP) appeared on behalf of the Defendant and Additional Claimant
APPROVED RULING
Friday, 26 May 2023
(2.00 pm)
Introduction
. This is the consequentials hearing following the judgment after trial that I handed down on 28 April 2023. The judgment is reported at [2023] EWHC 930 (Ch). I will adopt the same abbreviations and definitions as in my main judgment.
. By my judgment, I found in favour of Ms Green in relation to the fee of $1 million and I rejected all the Defendants' defences to her claim. I also dismissed the Defendants' counterclaims in tort.
. By my order of 28 April 2023, I directed this consequentials hearing to deal with costs and any application for permission to appeal. In the usual way, I extended time for the appellant's notice to be filed until 21 days after this hearing, anticipating that the application would first be made to me.
. However, when I received the Defendants' skeleton argument a couple of days ago, they said that they were not seeking permission to appeal from me. Mr Goodwin, who appears before me, together with Mr Lucan-Wilson for the Defendants, tells me that his clients are still considering their position in relation to an appeal.
. In my view, it is regrettable that the Defendants have not taken the opportunity to make an application for permission to me. I know that under CPR Part 52.3 they are entitled to simply go to the Court of Appeal, but the notes make quite clear in CPR 52.3.6 that an appellant would be well advised to apply for permission to the lower court before going to the Court of Appeal. Five reasons are given in the notes there set out, but I would add to them by saying that it is of benefit to the Court of Appeal considering permission to have the views of the trial judge, who has far greater knowledge, inevitably, of the case and the issues that are sought to be appealed. This approach was firmly endorsed by the Court of Appeal in Re T (A Child) [2002] EWCA Civ 1736.
. I obviously do not want to stray into any legal advice that may or may not have been given, but where an appeal is being contemplated and an extension of time obtained, and where there is every opportunity to make the application to the trial judge, it should be made to the trial judge. There is no reason not to, and there may be substantial benefits, both to the parties and the court, in doing so. It would be particularly regrettable if it is being done purely tactically, because the appellant perceives their position to be improved by avoiding the trial judge explaining why he is refusing permission to appeal.
. Anyway, no application has been made to me and I will, therefore, say no more about it.
Costs
. The issue of costs is, however, live before me, although, in broad terms, there is not much dispute between the parties. The Defendants agree that they lost and they must pay Ms Green's costs. Furthermore, a Part 36 offer was made by Ms Green, or on her behalf, on 28 July 2022, whereby she offered to settle the whole of the proceedings on the basis that she would receive a payment of $900,000 out of the Escrow Funds and the Defendants would receive the balance. The period for acceptance of the offer expired on 18 August 2022, but it was not accepted by the Defendants. They do, however, accept that the judgment was more advantageous to Ms Green than the offer, and that, therefore, the consequences set out in Part 36 apply.
. Therefore, in accordance with CPR Part 36.17:
(i) Ms Green is entitled to her costs after 18 August 2022 on the indemnity basis;
(ii) she is entitled to interest on her costs incurred after 18 August 2022 at the rate of 10 per cent over base rate; and
(iii) she is entitled to the payment of an additional amount of £75,000 from the Defendants.
Whilst the Defendants accept this, they do say that there should be some adjustment to that by reference to the late disclosure that happened shortly before and during the trial that they say was the fault of Ms Green's side. I will deal with that in due course.
. As to the further common ground between the parties, the Defendants agree that, prior to 18 August 2022, Ms Green is entitled to her costs. But they say it should be assessed on the standard basis, whereas Ms Green says it should be on the indemnity basis. The Defendants also agree that, prior to 18 August 2022, Ms Green is entitled to interest on her costs at the rate of 2 per cent over base rate. Finally, the parties are also agreed that there should be an interim payment on account, although they are quite far apart on the amount.
Standard or Indemnity basis
. So, turning to the disputed issues, and, first, whether the pre-18 August 2022 costs should be assessed on the standard or indemnity basis. The test for indemnity costs is easy to state and well-established. It is less easy to apply the test in any particular case.
. From Excelsior Commercial & Industrial Holdings Limited v Salisbury Hamer Aspden & Johnson [2002] EWCA Civ 879, the test is whether there is something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs. Mr Cullen KC also referred to the factors set out by Mr Justice Tomlinson, as he then was, in Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm) at paragraph 25, and those factors are repeated essentially in the White Book notes and are helpful.
. Mr Cullen relied on a number of factors that he submitted meant that the defendant's conduct was out of the norm.
. First, he says, and picking up something that I said in the judgment at [238], the Defendants' defence was constructed by lawyers after the event. I assume what he meant by that is that there never really was any defence to Ms Green's straightforward contractual claim. I think that this cannot really be considered in isolation from his second point, which is that the defences that they did come up with were based, up to trial, on the Defendants' witnesses' dishonest evidence.
. I found the Defendants' witnesses to have put forward false evidence in a co-ordinated way as to what they had allegedly been told had happened on the crucial telephone call between Ms Green and the Former Directors on 22 September 2019 when she is said to have renounced her obligations under the Artist Agreement. Apart from some other circumstantial evidence, this was really the only evidence the Defendants had as to the alleged renunciation, which was the whole basis of their defence, and indeed their counterclaims. It was exposed as false by the recordings that emerged late on.
. Even though the Defendants changed tack at trial and relied principally on the admission of Ms Green and the Former Directors that she had used the word “ impossible” on the crucial call, the Defendants' witnesses still maintained that their account was broadly true.
. In my judgment, this is grounds for awarding indemnity costs and it does take the case out of the norm because it cannot be said to be the ordinary and reasonable conduct of proceedings for all of the Defendants' witnesses to put forward the same false story about this, when they must have known it was untrue. They thought it could not easily be disproved. They had no idea, when they made their witness statements, that the recordings would emerge. Their defence was essentially based on a lie, and I agree with Mr Cullen that, without that false evidence, there was really no defence to Ms Green's claim.
. Mr Goodwin submitted that, inevitably, a judge has to decide between two competing narratives put forward by the opposing parties. Furthermore, he said that Ms Green was found to be, herself, an unsatisfactory witness and, to a certain extent, went outside her pleaded case in admitting that she said it was “ impossible” to make the film with Mr Seal. He also said that the renunciation case eventually turned on the meaning of the word “ impossible” in context, and the Defendants' witnesses' evidence actually became irrelevant. This was basically what Mr Mallin KC had been submitting on behalf of the Defendants in his closing submissions at the trial.
. To my mind, it misses the point. I am concerned with the period before 18 August 2022 because, since then, it is already established that Ms Green is entitled to indemnity costs because of the rejected Part 36 offer. Prior to August 2022, the Defendants were relying almost exclusively on their evidence which I have found to have been knowingly false. The court must express its disapproval of such an approach and conduct and the only way it can really do so is through an order for indemnity costs.
. Mr Cullen also referred to a number of other factors.
(1) First, he said that the Defendants' pleadings were prolix, vague and ill-formulated. In particular, they pleaded many breaches of the Artist Agreement which they maintained constituted repudiatory breaches. I repeatedly pressed Mr Mallin at trial to confirm that he was not relying on these, but he always said that he was. However, he made virtually no submissions on them. Having pleaded them, they will inevitably have given rise to many extra costs. Mr Cullen says...
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