St Vincent European General Partner Ltd v Robinson & Ors

Indemnity costs are appropriate where the circumstances take the case out of the norm. That may occur where a party continues litigation after being told that its case does not meet the standard of a good arguable case, especially where the same arguments and evidence are deployed again. A claim that is advanced too late, is arguably time-barred and lacks a proper evidential basis may also justify indemnity costs. Aggressive conduct which increases the burden of costs is a further relevant consideration. A stay of costs orders pending an appeal will not ordinarily be granted where enforcement risks are identified and the party seeking the stay offers no adequate protection for the successful parties.

In an earlier judgment, the court granted summary judgment dismissing the claimant’s claims against the existing defendants and dismissed its applications to re-amend its Particulars of Claim and add five proposed defendants. The parties agreed that the claimant should pay the defendants’ costs.

The court then determined the appropriate basis of assessment, payments on account, interest on costs, permission to appeal and a stay of the costs orders. The central issues were whether the circumstances justified indemnity costs and whether enforcement should be suspended pending an application to the Court of Appeal.

1. Indemnity costs. The essential test was whether the circumstances took the case out of the norm, applying Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a Firm) [2002] EWCA Civ 879 and the principles summarised in Three Rivers District Council v Governor & Company of the Bank of England [2006] EWHC 816 (Comm).
2. The existing defendants were entitled to standard-basis costs up to 9 January 2018 and indemnity costs thereafter. The earlier judgment and refusal of permission to appeal had made clear that the claim did not meet the standard of a good arguable case. Continuing with essentially the same arguments and evidence justified full compensation, although the earlier judgment did not create an issue estoppel.
3. The proposed amendments and additional parties involved an arguably time-barred claim advanced far too late and without a proper evidential basis. Those features independently reinforced the indemnity-costs order. The claimant’s particularly aggressive conduct also supported that order.
4. Payments on account were ordered within 14 days: £320,000 to the Robinson defendants, £170,000 to the Nicholson defendants, £15,000 to KFTP and £50,000 to Picton Jones. No order was made for interest on costs.
5. Permission to appeal was refused because an appeal had no real prospect of success. A stay of the costs orders was also refused. The claimant had identified funding difficulties and uncertainty about ATE insurance, but had offered no undertaking from its insurer that the defendants’ costs would be paid.

• High Court (Commercial Court): In the earlier judgment dated 24 May 2018, [2018] EWHC 1230 (Comm), the court granted summary judgment for the existing defendants and dismissed the applications to amend and add proposed defendants.
• High Court (Commercial Court): The present court determined costs and refused permission to appeal and a stay of the costs orders.