Sony/Atv Music Publishing LLC and Another v Wpmc Ltd ((in Liquidation)) and Another David Bailey (Costs Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] EWHC 456 (Ch) |
| Court | Chancery Division |
| Date | 10 March 2017 |
| Docket Number | Case No: HC-2012-000143 |
[2017] EWHC 456 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Arnold
Case No: HC-2012-000143
and
Ian Mill QC and Andrew Scott (instructed by Lee & Thompson LLP) for the Claimants
Benjamin Williams QC (instructed by Simons Muirhead & Burton LLP) for the Costs Defendant
Hearing date: 3 March 2017
Judgment Approved
On 3 March 2017 I handed down a judgment ( [2017] EWHC 389 (Ch)) in which I decided that Mr Bailey should be ordered to pay SATV's costs from 4 January 2013. Although the parties were able to agree most of the consequential order, there was a dispute as to one point which I must now determine.
As I explained in my judgment of 3 March 2017 at [1], [27] and [59], on 15 July 2015 I made an order which required WPMC to pay SATV's costs, assessed on the indemnity basis from 26 July 2014 on the ground that SATV had obtained a judgment which was at least as advantageous as their Part 36 offer dated 4 July 2014. For the same reason, that order also provided that WPMC should pay interest on SATV's costs from 26 July 2014 at the rate of 8% above base rate. So far as the question of the rate of interest was concerned, counsel for SATV invited me to follow the decision of Leggatt J to award 8% in Thai Airways International Public Co Ltd v KI Holdings Co Ltd [2015] EWHC 1476 (Comm), [2015] 3 Costs LR 545 at [30]. As I recorded in my judgment of 15 July 2015 at [11], no objection to that rate was made by counsel for WPMC, and therefore that was the rate I ordered.
Counsel for Mr Bailey contended that Mr Bailey should not be required to pay any interest on SATV's costs at all, and in the alternative that he should not be required to pay interest on SATV's costs from 26 July 2014 at the rate of 8% above base rate, but at a lower rate not exceeding 3% above base rate.
Counsel for SATV submitted that, given my finding in my judgment of 3 March 2017 that from 4 January 2013 Mr Bailey was the real party who controlled and partly funded the defence of SATV's claim with a view to his own benefit, it was not open to Mr Bailey to go behind the order dated 15 July 2015. He argued that, if Mr Bailey wanted to contest the award of 8% interest, then he should have instructed counsel for WPMC to do so on that occasion.
I do not accept this submission. Counsel for SATV did not go so far as to suggest that the matter was res judicata as between SATV and Mr Bailey, and in my view he was right not to do so. Although it could be argued, in the light of my findings, that Mr Bailey was a privy in interest to WPMC for the purposes of the doctrine of res judicata, it seems to me that the better view is that, as explained by Lewison LJ in Threlfall v ECD at [13] (quoted in my judgment of 3 March 2017 at [8]), in making a non-party costs order, the court is not determining legal rights and obligations, but exercising a statutory discretion. That being so, it is open to the court to decide when exercising that discretion not merely the principle of whether the non-party should be ordered to pay costs, but also the...
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