Rawlinson & Hunter Trustees SA (in its capacity as trustee of the Tchenguiz Settlement) v ITG Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWHC 1924 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC 2013 000411 |
| Date | 03 July 2015 |
[2015] EWHC 1924 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Buildings, Fetter Lane,
London, EC4A 1NL
Mr Justice Morgan
Case No: HC 2013 000411
Mr Charles Hollander QC and Ms Elizabeth Weaver (instructed by Stephenson Harwood LLP) for the Claimant
Mr Daniel Lightman and Mr Paul Adams (instructed by Bircham Dyson Bell LLP) for the Defendants
On written submissions following judgment handed down on 10 June 2015
On 10 June 2015, I handed down a judgment in this case: see [2015] EWHC 1664 (Ch). I held that an application made by the Claimant was an abuse of process and I dismissed it.
Following judgment, the parties discussed the order which should now be made by the court and I was provided with a draft order which disclosed that the parties were divided on two points. In the course of the later submissions, a third point of difference emerged.
In relation to costs, the Claimant accepts that it should be ordered to pay the Defendants' costs of and occasioned by the application. The Claimant says that those costs should be assessed on the standard basis; the Defendants say that those costs should be assessed on the indemnity basis. This is the first point that I am now asked to decide.
The second difference between the parties is that the Defendants seek an order under CPR r. 47.1 providing for the Defendants' costs of the application to be assessed immediately rather than at the conclusion of the proceedings in which the application was made. The Claimant says that such an order would be inappropriate. This is the second point that I am asked to decide.
The third point arises because the Defendants contend that if I do not make an order for the immediate assessment of their costs, then I should make an order for a payment on account of those costs, under CPR r. 44.2(8). The Claimant does not agree.
The principles to be applied on the issue as to whether the Defendants' costs should be assessed on the standard basis or on the indemnity basis are well known and are not in dispute. There are two differences between an assessment on the standard basis and an assessment on the indemnity basis. In summary, in the case of an assessment on the indemnity basis, the onus of persuasion which arises on an assessment of the reasonableness of the costs is reversed and the paying party does not have the benefit of the costs being restricted by reference to proportionality. The court may order an assessment on the indemnity basis where it is persuaded that the case is out of the norm. Where it is said that one party has behaved unreasonably in its conduct of the case, the relevant conduct must be unreasonable to a high degree.
The Defendants rely on five matters in support of their submission that there were features of the application which were out of the norm. In summary, the five matters are:
(1) the application was an abuse of process; the Claimant had been warned by the Defendants before the application was made that any such application would be an abuse of process and would expose the Claimant to costs sanctions;
(2) the Claimant's contention that the application was justified by the discovery of new material was disingenuous;
(3) the Claimant applied to join ITG Limited in its personal capacity and then simply abandoned that part of the application;
(4) the Claimant improperly sought to deploy the opinion of leading counsel (not Mr Hollander QC) on the question whether Mr Clifford (whose involvement is described in my earlier judgment) was a reliable and credible witness;
(5) the way that the Claimant had dealt with its evidence on a point about the power of the Guernsey court to order specific performance caused the Defendants to incur additional and, in the end, unnecessary expense.
In response, the Claimant makes a number of points:
(1) the Claimant considered that the application was justified by the availability of new material;
(2) the Defendants resisted the application on the basis that the Claimant was subject to an issue estoppel which prevented the Claimant making the application; the Claimant submitted that the Defendants' argument as to issue estoppel failed but it took up time and resulted in additional costs; a similar point was made in relation to alleged arguments from the Defendants as to the right test to apply in respect of abuse of process;
(3) the application was not a mere attempt to re-run an earlier application in respect of which the Claimant had failed;
(4) the application was conducted in a straightforward manner and concluded with a day's hearing;
(5) the matters relied upon by the Defendants did not take the case out of the norm or amount to unreasonable conduct;
(6) one of the Claimant's witnesses, Robert Tchenguiz had very strong views on various points.
The Defendants replied in detail to the Claimant's points. I bear the replies in mind but I need not summarise them in this judgment.
I consider that most of the matters relied upon by the Defendants are accurately described. Some of those matters, whether considered individually or even in conjunction with the other matters, do not really advance the argument that the case is out of the norm or that the Claimant's conduct was unreasonable to a high degree. I have in mind the matters referred to in (3) and (5) of paragraph 7 above. Conversely, the fact that the application was an abuse of process, that the suggested justification for it...
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Trevor Ford v Simone Dominique Bennett
...Openair v. Opal Telecom Ltd [2009] EWHC 779 (Ch), [2009] 6 Costs LR 882 at para [7]) and Rawlinson & Hunter Trustees S v. ITG Ltd [2015] EWHC 1924 (Ch) at para [11]. Under the standard basis of costs, the claimants would have been curtailed by their costs budget of £339,000, whereas under......
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Nihal Mohammed Kamal Brake v Duncan Kenric Swift (as trustee of the estates of Nihal Brake and Andrew Brake)
...direct an assessment and/or a payment on account, and refer to the decision of Morgan J in Rawlinson & Hunter Trustees SA v ITG Ltd [2015] EWHC 1924 (Ch). That was a case where the judge had to decide whether to order an immediate detailed assessment of the costs of a particular applicatio......