R Rawlinson and Hunter Trustees S.A. and Others (Claimants) Central Criminal Court and Another (Defendants) Vincent Tchenguiz (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 15 November 2012 |
| Neutral Citation | [2012] EWHC 3218 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4236/2011 & CO/4468/2011 |
| Date | 15 November 2012 |
[2012] EWHC 3218 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of the Queen's Bench Division
and
Mr Justice Silber
Case No: CO/4236/2011 & CO/4468/2011
Hugo Keith QC and Jonathan Glasson (instructed by Stephenson Harwood) for the Claimant, Rawlinson & Hunter
Lord Goldsmith QC, Ben Emmerson QC and Jonathan Barnard (instructed by Wilmer Hale) for the Interested Party, Vincent Tchenguiz
Lord Macdonald of River Glaven QC, Alex Bailin QC and Clare Sibson (instructed by BCL Burton Copeland) for the Claimants, Robert Tchenguiz and R20
James Eadie QC, Mark Ellison QC, Allison Clare and Ben Watson for the Serious Fraud Office
Judgment on Costs
This is the judgment of the court.
The claims for costs on an indemnity basis
By an order dated 31 July 2012, in claim numbered CO/4236/2001 ("the VT action") in which the claimants were Rawlinson & Hunter Trustees S.A. and other corporate entities ("RH") while Vincent Tchenguiz ("VT") was the Interested Party, the Court made various orders against the Director of the Serious Fraud Office ("the Director"). Among other matters, the Court:—
(a) Quashed the search warrant issued by HHJ Worsley QC made on 7 March 2011 to enter and search the premises of Consensus Business Group Limited, 35 Park Lane, London W1K 1RV;
(b) Declared the entries, searches and seizures conducted pursuant to the warrant to be unlawful on the grounds set out in the judgment;
(c) Ordered the Director to destroy permanently all copies (in whatever form or media stored) of materials obtained in the course of the searches made pursuant to the warrant;
(d) Quashed by consent the search warrant issued by HHJ Worsley QC on 7 March 2011 to enter and search the home of VT; and
(e) Ordered the applications by the claimants and VT for orders that the Director pay their costs on an indemnity basis be made in writing and to be responded to by the SFO in writing.
The Court also on 31 July 2012 made orders in claim numbered CO/4468/2011 ("the RT action") in which Robert Tchenguiz ("RT") and R20 Limited were the claimants and the Director was one of the defendants. Among other matters, the court made orders against the Director in which it :—
(a) Quashed the search warrants executed on 9 March 2011 at the claimants' home and business premises and declared the entries, searches and seizures conducted pursuant to the warrants to be unlawful;
(b) Declared the entries, searches and seizures conducted pursuant to the warrant to be unlawful on the grounds set out in the judgment; and
(c) Ordered that the claimants' application for indemnity costs be made in writing and responded to by the Director in writing.
Written submissions have been received from the claimants in each action and VT in support of their claims for orders that the Director should pay costs on an indemnity basis, although in the RT action, the claimants accept that they can only recover 80% of their costs because part of their costs was incurred in their unsuccessful claim against the Commissioner of the City of London Police.
In response, the Director has served an amended written submission to which RT has responded. The Director contends that in the VT action, he should pay one set of costs (namely either that of RH or VT) with such costs to be assessed on a standard basis. In the RT action, he contends that the relevant part of the claimants' costs should also be assessed on a standard basis.
The issues and the applicable principles
Thus there are three issues which the Court is now required to resolve in the light of the conclusions in the judgment namely:—
(a) whether the claimants' costs in the VT claim ought to be assessed on a standard or on an indemnity basis;
(b) whether VT in the VT claim is entitled to a separate award of costs and, if so, on what basis they should be assessed; and
(c) Whether the costs agreed as payable in respect of the claimant in the RT claim (namely 80% of the claimant's costs to be paid by the Director) ought to be assessed on a standard or on an indemnity basis.
There is no dispute concerning the relevant principles which have to be applied in determining whether costs should be ordered on a standard or an indemnity basis and it is worth stressing that:—
a) The Court enjoys a "wide and generous discretion" as to the award of costs: Excelsior Commercial and Industrial Holdings Ltd v Salisbury Ham Johnson and Others [2002] EWCA Civ 879per Lord Woolf at [12] commenting on Part 44.3, CPR;
b) the Court of Appeal has declined to give guidance on the making of costs orders on an indemnity basis: ibid, and Part 44.4, CPR, White Book at pp1334–1343; and
c) an award of costs on an indemnity basis will only be appropriate where there is "some conduct or […] some circumstance which takes the case out of the norm": Excelsior at [19], and "all relevant circumstances must be taken into account (at [29]); (see also Catalyst Investment Group v Lewisham [2009] EWHC 16 (Ch) at [18]). As the White Book commentary states, "the minimum nature of the conduct required is,...
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Eric Evans and Others v The Serious Fraud Office
...of unreasonable or otherwise inappropriate conduct in the wider sense ( R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 3218 (Admin)at [6](c) per Silber J, approving the commentary then appearing in the White Book). Although indemnity costs may be ordered where there ......