UPL Deutschland Ltd v AgChemAccess Ltd & Ors

On an interlocutory application resolved by agreement, the fact that a respondent accedes to relief is only a useful starting point in assessing costs. It does not establish that the applicant would have obtained the relief, or all of it, after a contested hearing. The court may adopt a broad-brush assessment of success and should avoid a disproportionate investigation requiring it effectively to determine the underlying application. Disclosure ancillary to a freezing order may be used to identify undisclosed assets. It should not generally be ordered merely to investigate whether an injunction has been breached and provide material for contempt proceedings. Where success cannot fairly be determined and conduct findings are limited, the appropriate order may be costs in the case.

The claimant applied for documents and information from the first and third defendants concerning assets, bank accounts, ordinary living expenses and compliance with a freezing order. The application was resolved by agreement before the hearing, but the parties could not agree costs.

The claimant argued that it had substantially succeeded and that delay by the defendants justified an order in its favour. The defendants argued for costs in the case, and later sought their costs of the hearing. The court therefore had to determine the appropriate costs order without deciding the merits of the underlying disclosure application.

1. Costs and apparent success. The court declined to find that either party was successful. Acceding to relief indicates that an application may have been justified, but it may also reflect a desire to save costs or appear co-operative. It does not show that the relief would necessarily have been granted, particularly where the application was interlocutory and the agreed relief extended beyond the original order.
2. Proportionality. The court was entitled to take a broad-brush view of success. It was not proportionate, at a costs hearing, to analyse every aspect of an untested application or reconstruct the hearing that might have occurred.
3. Freezing-order disclosure. Disclosure ancillary to a freezing order may legitimately identify assets that have not been disclosed. The ordinary practice is not to order disclosure principally to investigate whether an injunction has been breached and to supply material for committal proceedings. Several aspects of the application raised that distinction and might have required substantial argument had they been contested.
4. Conduct. The defendants had delayed in engaging with the application, but the court found no prejudice and could make only limited findings from the correspondence. The delay did not alter the overall costs decision.
5. Order. The appropriate order was costs in the case.