Ineos Upstream Ltd & Ors v Persons Unknown

Costs following an application for injunctive relief against persons unknown depend on the parties’ relative success, the nature of the application and the assistance provided to the court. Where the claimant had to apply to court in any event, participation by other parties did not justify a costs order in their favour, although it assisted the court in a case of public importance.

Permission to appeal requires a real prospect of establishing an error of principle or misapplication of established principles, or some other compelling reason for the appeal to be heard. Evaluation of the facts and matters of judgment will not ordinarily satisfy that threshold.

The judgment followed an earlier decision concerning the claimants’ applications for injunctive relief against persons unknown. The court had directed written submissions on costs and on applications by the sixth and seventh defendants for permission to appeal. The claimants sought no costs for their injunctive-relief application but sought costs relating to the defendants’ applications. The sixth and seventh defendants sought costs and permission to appeal.

The central issues were the appropriate costs order and whether either proposed appeal had a real prospect of success or some other compelling reason for being heard.

1. Costs. The claimants were substantially more successful than the sixth and seventh defendants on the arguments advanced in the injunctive-relief application. However, the application was against persons unknown, so the claimants had to attend court in any event. The defendants’ participation lengthened the hearing but assisted the court in a case of public importance. The seventh defendant was not entitled to costs, and the claimants did not seek costs against the defendants.
2. The sixth defendant’s contention that the claimants had breached their duty of candour failed. That issue was not separated out as attracting a distinct costs order and was treated as one of the issues determined in the applications. The sixth and seventh defendants’ applications had not succeeded so as to justify costs in their favour.
3. The fair result was no order for costs in respect of the claimants’ application of 31 July 2017 and no order for costs in respect of the sixth and seventh defendants’ applications of 6 September 2017.
4. Permission to appeal. The proposed appeals had no real prospect of showing an error of principle. The judge had applied established authority to the circumstances of the case. Complaints about the application of principle involved evaluation, judgment or assessment of the facts and did not disclose a real prospect of success. There was also no other compelling reason for an appeal to be heard. The earlier refusals of permission in Mayor of London v Hall [2011] 1 WLR 504 and City of London v Samede [2012] 2 All ER 1039 were relevant to that assessment.
5. Permission to appeal was refused.

The judgment concerns applications arising from the earlier decision of the High Court, Chancery Division, reported at [2017] EWHC 2945 (Ch). Permission to appeal to the Court of Appeal was refused.