Nori Holding Ltd & Ors v Public Joint-Stock Company 'Bank Otkritie Financial Corporation'

In assessing costs, the court identifies the successful party by considering the litigation as a whole and the significance of the relief obtained. Failure on one important and discrete issue does not necessarily prevent recovery of all costs, but the order may reflect that failure. A deduction from the successful party’s costs may be preferable to an issue-based costs order where it provides a fairer and more proportionate result. Summary assessment involves a broad-brush evaluation rather than the detailed scrutiny applicable on detailed assessment.

The judgment concerned costs following the court’s substantive decision in [2018] EWHC 1343 (Comm). The claimants had obtained an injunction requiring termination of Russian proceedings, but had failed to obtain an injunction restraining pursuit of related Cypriot proceedings. Permission to appeal concerning the Russian proceedings was refused by the court and subsequently by the Court of Appeal. The central issues were which party had succeeded overall, how the claimants’ failure on the Cypriot proceedings should affect costs, and whether the costs should be summarily assessed.

1. The claimants were the clearly successful party overall. The injunction concerning the Russian proceedings was the main and most urgent focus of the litigation. The claimants had also succeeded on four of the five issues argued. The fact that they failed on the Cypriot proceedings did not displace their overall success.

2. The failure concerning the Cypriot proceedings was nevertheless important and discrete. The appropriate way to reflect that failure was to deduct from the costs awarded to the claimants, rather than adopt an issue-based approach. The claimants were therefore awarded three quarters of their costs of the action.

3. The court accepted the parties’ invitation to assess the costs summarily on the standard basis. Summary assessment necessarily involves a broader-brush approach than detailed assessment. Having regard to the parties’ submissions, the claimants’ total recoverable costs before discount were assessed at £280,000. Three quarters of that sum, £210,000, was payable by the defendant.

The judgment followed the substantive decision of the High Court (Commercial Court) in [2018] EWHC 1343 (Comm). Permission to appeal from the decision concerning the Russian proceedings was refused on paper and, on renewal, by Flaux LJ. No appeal was pursued against the refusal of an injunction concerning the Cypriot proceedings.