IXIS Corporate & Investment Bank v West LB Ag

On an application for third-party disclosure, the general costs rule is that the person against whom the order is sought receives the costs of the application and compliance. The court may vary that order having regard to all the circumstances, particularly the reasonableness of opposing the application. Where the third party acted reasonably and substantially narrowed the scope of disclosure, the general rule should ordinarily be applied. Costs may nevertheless be assessed to remove unreasonable hourly rates or excessive preparation time.

The claimant applied for third-party disclosure against Calyon in existing commercial proceedings. The application succeeded in part, with the scope of the proposed order substantially reduced as to time, document classes and personnel. The court then determined the costs of the application and the recoverable amounts claimed by Calyon, including the appropriate hourly rate and preparation time.

1. The general rule under Civil Procedure Rules 1998, Part 48.1(2) and (3), is that the person against whom a third-party disclosure order is sought receives the costs of the application and compliance. The court retains a discretion to vary that result in light of all the circumstances, particularly the reasonableness of the third party’s opposition.
2. Calyon’s initial delay and refusal to provide the documents did not make its opposition unreasonable for the relevant period. It was legitimate for Calyon to consider its position, and it had substantially reduced the ambit of the order sought.
3. The general costs rule was therefore applied. Calyon was awarded its costs of the application and compliance.
4. The costs were assessed subject to reductions. The claimed hourly rate was unreasonable and was reduced to £450. Preparation of the hearing bundles and related work undertaken by Mr Graham was reduced to two hours. The proposed fees for Mr Slade’s attendance and substantive preparation were allowed.
5. Payment was ordered within 28 days.

Not stated in the judgment.