ABB AB HVDC v McLaren Construction (Midlands And North) Ltd

Costs of an interim application ordinarily follow the party that substantially succeeds, assessed by reference to the relief obtained and the circumstances existing when the application was made. In urgent and changing circumstances, the court may grant appropriately adjusted relief without deciding the underlying contractual dispute. Proceedings are not precipitous where continuing uncertainty, incomplete cooperation and the risk of serious project disruption justify immediate court intervention. The fact that the principal dispute remains unresolved does not prevent a costs order on the interim steps.

ABB and McLaren were parties to a construction sub-contract which ended following ABB’s purported termination and McLaren’s acceptance of an alleged repudiatory breach. ABB sought interim relief requiring McLaren to assign sub-contracts and provide executed sub-contract documentation. McLaren provided incomplete information and assignments, and ABB issued proceedings amid concerns about delay to a major project and the ability to deal directly with sub-contractors.

At the hearing, the court made an adjusted order requiring further disclosure. That order led to the identification of additional agreements and documents, and ABB considered that it had sufficient information without seeking further relief. The issue was which party should bear the costs of the interim application, while the validity and financial consequences of the termination remained unresolved.

1. Outcome. McLaren was ordered to pay ABB’s costs of and occasioned by the interim application up to and including 20 May 2019, to be assessed if not agreed.
2. The proceedings issued on 10 May were not precipitous or an abuse of process. The urgency arose from the collapse of a major project, substantial delay, the loss of McLaren and the potential loss of its sub-contractors. McLaren’s earlier assignments were materially incomplete and did not resolve ABB’s difficulties.
3. ABB had substantially succeeded in the interim application. The relief made on 15 May differed from the relief originally claimed, but that reflected the need for interim protection and the flexibility required to respond to changing circumstances. The order produced further information necessary to reassure ABB that it had the relevant documentation.
4. The court did not need to determine the parties’ major contractual dispute, including whether ABB’s termination was justified or the financial consequences of termination. Those unresolved issues were not determinative of the costs of the interim steps.
5. The costs cut-off was 20 May because the court’s direct involvement covered the making of the order and its immediate consequences. The court lacked sufficient information to assess events after that date reliably.

First-instance costs ruling. No appellate history is stated in the judgment.