Ong & Ors v Ong Siauw Ping

Where the court has orally indicated the terms of an order, the order should be drawn up and sealed in those terms. A later application concerning alleged non-compliance should not be determined in advance unless the alleged default is established. A payment on account of costs should reflect any realistic possibility that costs will later be disallowed, including because of duplication. A stay pending permission to appeal may be refused where permission has already been rejected on the papers as not realistically arguable. Costs orders should reflect the parties’ relative success and failure.

This was a further judgment following the court’s earlier judgments in the same proceedings, including [2015] EWHC 3258 (Ch). The court was asked to determine future dates for disclosure, make a further payment on account of costs, stay the costs orders pending an application for permission to appeal, and decide costs arising from two applications.

The central issues were whether a further disclosure order was appropriate when the parties disputed compliance with an earlier oral order, how the possibility of duplicated costs should affect a payment on account, and whether a stay should be granted.

1. The court considered that it had indicated on 5 October 2015 the disclosure order it would make. The order should therefore be drawn up and sealed in the terms then expressed. If the Second to Fourth Claimants alleged non-compliance, they could apply for further relief. The court declined to determine at that stage that the Defendant had failed to comply or to make a further order on that assumption.

2. The court was prepared to order a further payment on account of the Claimants’ costs. The earlier payment of £550,000 for the Second to Fourth Claimants had not allowed for the possibility that duplicated costs might be disallowed. The further payment was therefore fixed at £100,000, so as to reflect that possibility fully.

3. Time for both payments on account was extended to 25 January 2016. A stay was refused. Davis LJ had dismissed the Defendant’s application for permission to appeal on the papers because the proposed appeal was not realistically arguable, and there was no sufficient basis to defer enforcement pending an oral hearing.

4. The Defendant was ordered to pay 80% of the costs of the disclosure application and 25% of the costs of the argument concerning two sets of solicitors’ costs, reflecting the parties’ relative success and failure.

The judgment arose from matters following earlier decisions in the same proceedings, including the judgment dated 11 November 2015, which gave reasons for the disclosure order. The Defendant’s application for permission to appeal had been dismissed on the papers by Davis LJ as not realistically arguable.