PJSC National Bank Trust v Boris Mints
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foxton |
| Judgment Date | 13 May 2022 |
| Neutral Citation | [2022] EWHC 1132 (Comm) |
| Docket Number | Case Nos: CL-2019-000412; CL-2020-000432 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 1132 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foxton
Case Nos: CL-2019-000412; CL-2020-000432
David Davies QC and Bibek Mukherjee (instructed by Steptoe & Johnson UK LLP) for the Claimants/Applicants
Philip Edey QC, Sarah Tresman and Tetyana Nesterchuk (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the First Defendant/Respondent
Laurence Rabinowitz QC, Simon Paul and Niranjan Venkatesan (instructed by Enyo Law LLP) for the Second and Third Defendants/Respondents
Ruling on Costs
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Foxton
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Friday 13 May 2022 at 10:30am.
On 11 April 2022 I handed down judgment dismissing the Banks' applications for permission to amend the Particulars of Claim to allege that the Respondents were precluded from challenging certain findings made in the LCIA Award and for a summary determination of the issues said to be covered by the arbitral findings in the Banks' favour.
I have now received written submissions from the parties on the costs orders which are to be made. I have taken the relatively unusual step of setting out my reasons for my costs orders in a reserved ruling, as the applications raise one issue of wider interest.
There is no dispute that the Respondents are the successful parties and are entitled to costs orders in their favour. There are two issues which arise:
i) whether any deduction should be made from the costs awards in the Respondents' favour to reflect legal arguments on which they did not succeed and/or criticisms made of their evidence; and
ii) the amount of the interim payments on account of costs.
Should the court make any reduction in the Respondents' costs recovery?
CPR 44.2(6) provides that the court may order one party to pay a proportion of the other party's costs. It will sometimes be appropriate to make such an order to reflect particular issues raised or arguments run ( Sharp v Blank [2020] Costs LR 835, [7]). The applicable principles in this context are well-established. It is a rare litigant who succeeds on every point (see the authorities cited in R (Viridor Waste Management Ltd) v Revenue and Customs Commissioners [2016] EWHC 2502 (Admin), [9]). The Court of Appeal has warned first instance judges against too great a readiness to reduce costs orders in favour of successful parties on the basis of arguments which did not succeed, particularly where those arguments were alternative routes to the same end (see for example Fox v Foundation Piling Ltd [2011] EWCA Civ 790, [62]). However ultimate success does not provide a blank cheque for advancing arguments where it is not proportionate to do so, or in circumstances in which they will engage significant court and party time and resources but are highly unlikely to be determinative.
The Banks point to a number of issues or arguments advanced by the Defendants which were not accepted by the court or did not need to be determined. However, I have concluded that there are only two issues which should be reflected in the costs order.
The first concerns the witness statements served by the Respondents, which in the case both of D1 and D2/D3 I found unsatisfactory in both content and status, for reasons set out in the Annex to the judgment. The statements appear to have been prepared with a view to saying as little as possible, with as little specificity as possible, and to avoid what it must have been obvious were the real issues. In the case of D2/D3, some of the gaps identified by the Banks were addressed by a late statement for which there was no provision or permission, and which once again sought to reveal as little as possible. D1 sought generally to adopt the statements served on behalf of D2/D3. Statements prepared in this spirit are of limited utility to the court and have the capacity to generate both unnecessary disputes and unnecessary costs – not least because the process of working out how to say as little as possible can often be even more consuming of legal resource than the preparation of evidence which is appropriately forthcoming.
The second concerns the argument advanced by all three Respondents, but the principal burden of which was assumed by D2 and D3, that Gleeson v Wippell had been wrongly decided and should not be followed. However interesting that issue is, it was in my view never realistically open at first instance (it will be for others to determine on an appropriate occasion whether it is realistically open in the Court of Appeal). It was not necessary to argue the point out in order to preserve it for a higher court. The argument consumed a significant amount of resource for the hearing. It was addressed at length in the Banks' and (particularly) D2-D3's skeleton arguments. It was responsible for a very significant proportion of the 150 authorities cited to the court. It occupied a significant portion of D2-D3's oral submissions. It was largely the Gleeson v Wippell point which caused the hearing to stray so significantly outside its time estimate and led to so much “extra-curial” judicial reading being required.
In a Practice Note issued on 29 March 2022, Mrs Justice Cockerill as Judge in Charge of the Commercial Court drew attention to the proliferation of points being argued and authorities being cited in trials and heavy interim applications in the Commercial Court, and the accompanying (unfounded) assumption that judges could be left to follow up points in their “own time”, stating:
“In particular the number of points and authorities being sought to be raised is often – and increasingly – completely out of step with the hearing time listed. The result is that on a number of occasions counsel have either taken submissions at excessive speed (as noted for example in Libyan Investment Authority v Credit Suisse International [2021] EWHC 2684 (Comm) [139–140] where experienced transcribers were unable to keep up with the pace of speech) or have sought to conduct legal argument...
To continue reading
Request your trial
-
Deutsche Bank AG (London Branch) v Central Bank of Venezuela
...the authorities on issue based costs orders but also with the point made by Foxton J in PJSC National Bank Trust v Mints and others [2022] EWHC 1132 (Comm) and reiterated in the Commercial Court's Practice Note of 30 March 2022 as to points taken which consume a significant amount of the p......