Koza Ltd v Koza Altin Isletmeleri as
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 24 March 2023 |
| Neutral Citation | [2023] EWHC 629 (Ch) |
| Docket Number | Case No: HC-2016-002407 |
| Court | Chancery Division |
[2023] EWHC 629 (Ch)
HIS HONOUR JUDGE Jarman KC
Sitting as a judge of the High Court
Case No: HC-2016-002407
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Siward Atkin KC and Ms Edlyn Livesey and Mr Hammad Baig (instructed by Oakstead Solicitors) for the claimants
Mr David Caplan (instructed by Mishcon de Raya LLP) for the defendant
Hearing dates: 25–26 January 2023
This judgment was handed down remotely at 10.30am on Friday 24 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
HIS HONOUR JUDGE Jarman KC
HHJ Jarman KC:
This is my decision as to who should pay the costs of the application by the defendant (Koza Altin) dated 2 December 2022 to vary paragraph 1 of the interim order of Mrs Justice Asplin (as she then was) dated 21 December 2016. The effect of that paragraph was to continue the control, on an interim basis, of the first claimant (Koza) by the second claimant (Mr Ipek) who claimed to be its lawful director, rather than the appointed directors of Koza Altin as its parent company. I heard detailed submissions from the parties over two days on 25 and 26 January 2023 as to whether I should vary the order so as to give effective control of Koza to Koza Altin. At the outset, it appeared that the parties had agreed to resolve applications to vary other interim orders, or were close to doing so, and I gave them further time to finalise those. They were able to come to a settlement in respect of those other issues, with costs reserved. At the end of the hearing I reserved judgment on the outstanding variation.
The only ground on which the claimants resisted that application was that they had a pending application for permission to appeal to the Supreme Court from a decision of the Court of Appeal in the present proceedings ( [2022] EWCA Civ 1284). In that decision, Sir Julian Flaux, Chancellor of the High Court, giving the lead judgment, rejected arguments by the claimants that the courts of this jurisdiction should not recognise the present directors of Koza Altin, because they had been appointed pursuant to a corrupt judgment in a Turkish Court. The Chancellor did not consider that there were serious issues to be tried, because the authority of present directors of Koza Altin does not arguably derive from the allegedly corrupt judgment, but from acts of the Turkish legislature and/or executive. Moreover, that judgment was not arguably corrupt in the light of subsequent decisions of the Turkish Constitutional Court and/or the ECtHR. The Court of Appeal refused permission to appeal, and so the claimants applied for permission from the Supreme Court.
Mr Atkin KC submitted before me that the grounds of the application to the Supreme Court were novel and complex and had, at least, a realistic prospect of success, and so that I should not in the meantime grant the application to vary. Just over a week after I reserved judgment, the Supreme Court refused permission to appeal. The claimants then realistically conceded that they no longer had a tenable basis for resisting the variation, and consented to it. The parties could not agree on who should bear the costs of the December 2022 application and other applications and so I directed that they should make written submissions on costs and I would then determine what order to make on the basis of those submissions. Each side filed written submissions accordingly, which I have read and take into account. In short,...
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