Peer International Corporation v Termidor Music Publishers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd |
| Judgment Date | 23 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1308 |
| Date | 23 November 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2007/0631(A) |
[2007] EWCA Civ 1308
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE LINDSAY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Case No: A3/2007/0631(A)
A3/2007/0361(B)
Mr P Saini (instructed by Sheridans Solicitors) appeared on behalf of the Respondent
Mr J Mellor QC (instructed by Messrs Teacher Stern Selby) appeared on behalf of the Appellant.
This is an application by the respondent to an appeal for security for costs and for an order that the appellant be put on terms requiring it to pay certain amounts due under existing costs orders, which are not challenged, as a condition of being allowed to prosecute the appeal.
The application notice originally asked for an order stipulating a time within which the appellant should amend its appellant's notice as had been ordered to happen in an order made by this court, consisting of Sedley LJ and myself, on 3 October, by which we gave permission to appeal. The amendment to the appellant's notice has been effected so that point has fallen away.
There is a consequential point, which I need do no more than mention. The appeal is an appeal against the judge's costs order at the end of the trial. It is plain, as a result of the amendment to the appellant's notice, that the appellant seeks not only to persuade the court that the judge went wrong in principle in the exercise of his discretion, but, if it succeeds in that, it will ask the Court of Appeal to exercise the discretion, rather than ask that the matter be remitted to the trial judge. The respondent's position is that the judge did not err in principle in the exercise of his discretion; but its position is that if the court is persuaded that he did, so that the court then embarks on the exercise of the discretion as to costs, it would wish to argue that the judge was not sufficiently favourable to it. That is a contention that would, in that event, be open to the respondent. The court, as Mr Saini points out, would have power to make an order more favourable to the respondent. The respondent's contentions in that respect are contingent contentions as a fallback to its primary position, which is that the judge's order ought not to be disturbed. However, it is plain that such a contingent contention must be set out and supported in a respondent's notice, and I have directed that a respondent's notice be served and filed by 7 December.
That leaves the two substantial matters, namely, the proposed condition as to payment of existing costs orders, and the application for security for costs. I will deal with the condition first. Three costs orders are at stake. One is an order that EMC, the appellant, pay the costs of the adjournment of the trial in October 2005. That is a liability of EMC alone, in respect of which Peer, the respondent, claims, or has put in a bill claiming, £45,500 odd. Whether it is strictly appropriate or not, reference has been made in the evidence to some subsequent dealings between the parties, from which I can see that the respondent might be willing to accept £28,000 in respect of that order for costs, and that is one item which is not substantially at issue, other than as to the period within which EMC can reasonably be expected to pay it.
The same order of Lindsay J, which was dated 4 December 2006, also included a separate provision as to costs, under which EMC, the appellant, and Termidor Publishers Limited (which is a UK company) and Termidor Musikverlag GmbH & co KG, (an associated German company) should jointly and severally pay two thirds of Peer's costs of the preliminary issues in the trial. As regards the quantum of that, that has been agreed in October of this year at £54,000. As between Peer and the Termidor companies, the position is that Peer is liable to pay some costs to Termidor and those are to be set off against Termidor's liability, in respect of what is now quantified as £54,000. So that is a sum: £54,000 is due from EMC, but it is also jointly and separately due from the Termidor companies. The third item is pursuant to an order of Lindsay J of 26 February 2007, under which EMC is required to pay £7,400 odd with interest, which is said to amount to £7,800 or so by the time of the respondent's application. As to that, the evidence is that EMC, which is a Cuban entity and which has had difficulties in the past in obtaining exchange control permission to make payments in foreign currency, has started the process of remitting that money to its English solicitors so that that money may be paid over in satisfaction of the order, so far as it goes; but that money has not yet arrived. Thus, Peer's application is that it should be made a condition of EMC pursuing its appeal that by some given date (it says fourteen days, but that is probably too short) EMC should pay £54,000 on the order for which it is jointly and severally liable with Termidor, the £7,000 odd, under the order of February this year and, in practice, £28,000, in respect of the costs of the adjournment under Lindsay J's order of 4 December 2006.
Undoubtedly, there is jurisdiction to make an order of that kind as a condition of allowing an appeal to proceed. The leading case in this area is Hammond Suddards v Agrichem International [2001] EWCA Civ 2065, in which such an order was made where the appellant was, if I remember right, a company established in the British Virgin Islands with a post office box address in Jersey, and no assets in the United Kingdom and no admission of any assets anywhere, but with an unexplained ability to finance its side of the litigation. An order of that kind was made in that case, and such orders have been made in other cases, where the appellant is a person or entity based outside not just the United...
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Fresh Trading Ltd v Deepend Fresh Recovery Ltd and Another
...both old Fresh and Deepend have long since dissolved. But I do not think that this can affect the position: cf. Peer International Corp v Termidor Music Publishers Ltd [2004] RPC 22 at [76] – [81]. In any event Fresh's consideration for the clause 5.1 and other obligations was the promise t......