Pablo Star Ltd v Emirates Integrated Telecommunications

After reversing a lower-court judgment, an appellate court may make consequential costs orders for the appeal and relevant hearing below. It may also stay proceedings for a limited period where mediation is supported and the stay is likely to prevent further costs, while requiring procedural steps that should not await mediation. A proposed amendment should not be determined without the pleading itself. A service objection becomes moot where further personal service has occurred. Permission to appeal to the Supreme Court is ordinarily a matter for that court.

This was a consequential hearing in an appeal by Pablo Star Ltd against Emirates Integrated Telecommunications from the Queen’s Bench Division Mercantile Court. The Court of Appeal had reversed the judgment below. It considered costs of the appeal and selected hearings below, a proposed amendment to the claim, a stay to facilitate mediation, a possible service objection, acknowledgement of service under Civil Procedure Rules 1998 rule 11(7), and permission to appeal to the Supreme Court.

1. Costs. Having reversed the judgment below, the Court of Appeal considered it appropriate to assess the costs of the appeal and the Mercantile Court hearing of 28 October 2008, because the lower court’s costs order required re-examination. It declined to assess the costs of the June 2008 and 2 April 2008 hearings. The respondent was ordered to pay the assessed costs, including £1,608.90 for preparation for the appeal hearing, £600 already awarded for the security for costs application, £2,240.63 for the permission application, £3,773.72 for the hearing below, and the additional costs of the hearing before Rix LJ (paras [2]–[5], [11]).
2. Amendment. Permission to amend was not determined. The appellant had not placed any proposed amended pleading before the court, and it was therefore inappropriate for the Court of Appeal to deal with the application (para [6]).
3. Stay and mediation. A six-week stay was granted to prevent further costs being incurred while the parties attempted mediation. The court considered that mediation should be organised with the respondent’s solicitors involved and accepted that any proposed amendment could be considered as part of the mediation (paras [7]–[8], [11]–[12]).
4. Service and appeal permission. A further challenge to service under local law required no determination because further personal service had occurred. Despite the stay, the respondent was required to file its acknowledgement of service by 27 October pursuant to CPR 11(7). The Court of Appeal declined to impose a case on the House of Lords or Supreme Court; any application for permission was to be made to that court (paras [9]–[10]). Application for stay granted.

• Court of Appeal (Civil Division): Following its judgment reversing the Mercantile Court decision, made consequential costs, stay, service and permission-to-appeal directions in [2009] EWCA Civ 1178.
• Queen’s Bench Division, Mercantile Court: Judgment reversed by the Court of Appeal; citation not stated in the judgment.