Bulk Trading SA v Moeller

A judge may correct the transcript of an oral judgment to add or vary reasons, including at the permission-to-appeal stage. On costs, the court may consider all relevant conduct, including conduct before proceedings where it is closely connected with the litigation. An appellate court should intervene in a discretionary costs decision only where the judge acted outside the permissible range. A successful party may receive no order for costs where its own conduct materially contributed to the dispute, even though the opposing party lost the principal issue.

Bulk Trading applied for permission to appeal against a Central London County Court order following its successful application under section 72 of the Arbitration Act 1996 to set aside an arbitration award for want of effective notice. The county court judge made no order as to costs, finding that Bulk Trading had significantly contributed to the problem by maintaining an unattended fax facility and by being responsible for its agent’s failure to answer correspondence.

Bulk Trading argued that the judge should not have added the second reason when correcting the transcript and that conduct relating to Bulk Shipping’s fax facility could not fairly be attributed to Bulk Trading. The Court of Appeal considered whether there was any reasonable prospect of successfully challenging the exercise of the costs discretion.

1. Permission refused; application dismissed. There was no reasonable prospect of showing that the county court judge had acted outside the range of his discretion in making no order as to costs.
2. A judge may correct the transcript of an oral judgment so as to add to or vary the reasons given. The fact that the order has already been drawn up does not prevent such correction. The Court of Appeal had stated in English v Emery Reibold & Strick [2002] EWCA Civ 605 that, at the permission stage, it may even be appropriate for additional reasons to be added.
3. In exercising the costs jurisdiction, the judge may consider all relevant conduct under the CPR, including conduct occurring before proceedings. Pre-proceedings conduct may properly be relied upon where it is closely connected with the conduct of the proceedings themselves.
4. The judge was entitled to treat the maintenance of an unattended fax facility, the failure to notify Moeller of the relevant business changes, and Ferpandi’s failure to answer correspondence as conduct materially contributing to the abortive arbitration. The judge was also entitled to take account of Bulk Trading’s loss on the uncertainty issue and of Moeller’s substantial costs in resisting the application.
5. The circumstances justified sharing the costs by making no order. The Court of Appeal emphasised the reluctance to interfere with a discretionary costs decision and dismissed the renewed application.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed. There was no reasonable prospect of successfully challenging the county court’s discretionary costs order.
• Central London County Court: Judge Mackie QC set aside the arbitration award under section 72 of the Arbitration Act 1996 for ineffective notice of the arbitration and made no order as to costs.