Cintec International Ltd v Parkes

Where an interim costs order is stayed on terms, failure to comply with those terms means that the stay does not operate. A provision fixing a final date for payment and preserving other enforcement methods may also, by implication, bring the stay to an end when payment is not made by that date. On an appeal, fresh evidence must satisfy the established requirements of credibility, likely material influence and reasonable diligence, although the court may consider wider circumstances under the Civil Procedure Rules. Prolonged delay, particularly where the evidence could have been deployed earlier, weighs heavily against reopening a settled costs decision.

The defendant sought permission to appeal against Master Bragge’s order of 19 May 2009, which dismissed his challenge to a certificate that £90,000 was due under an interim costs order made by Laddie J on 16 October 2003. The certificate had been issued in January 2004 and relied upon in Scottish insolvency proceedings. The defendant argued that the stay attached to the costs order remained effective and sought to rely on fresh evidence concerning security over a painting. Permission had previously been refused on paper by Peter Smith J. The central issues were whether the stay had ended and whether fresh evidence should be admitted.

1. Permission to appeal was refused and Master Bragge’s order stood.

2. The interim costs order was stayed on terms. The evidence before the Master established that the required security over the painting had not been provided. Non-compliance with that term meant that the conditions of the stay had not been met. The £90,000 was therefore due and was not subject to a current stay when the certificate was issued.

3. Independently, paragraph 9(vi) of the order fixed 11 December 2003 as the operative final date. If payment and the required cash deposit had not been made by then, the claimant could enforce the security and could also use other enforcement methods. By necessary implication, the stay had ended.

4. The court considered the principles in Ladd v Marshall (1954). Fresh evidence ordinarily requires proof that it could not have been obtained with reasonable diligence, that it would probably have an important influence on the result, and that it is apparently credible. Under the Civil Procedure Rules the approach is less rigid, but the court may give substantial weight to the passage of time and the interests of finality.

5. The proposed evidence was equivocal, unsupported by a statement from the person best placed to explain the failure to deposit the painting, and produced more than five years after the certificate and after the defendant had already had an opportunity to challenge it. It was not shown that the evidence would materially affect the outcome or could not have been produced earlier.

• High Court (Chancery Division): Mr Justice Morgan refused permission to appeal against Master Bragge’s order of 19 May 2009.
• Earlier permission decision: Peter Smith J refused permission on paper because the appeal had no real prospect of success.
• Master Bragge: dismissed the defendant’s challenge to the certificate concerning the £90,000 interim costs liability and made a costs order.