Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd (Costs)

The court may award interest on a damages claim expressed in a foreign currency at a rate it considers appropriate. A relevant market benchmark may be adopted where it fairly reflects the circumstances of the claimant and the currency of the claim.

Where an approved costs budget exists, it is the appropriate starting point for a payment on account. A deduction may be made to reflect uncertainty in detailed assessment. The court may make a further reduction where indemnity costs are not justified. Indemnity costs require conduct sufficiently unreasonable to justify that exceptional basis.

Following an earlier hearing concerning the claimant’s application to strike out the defendant’s defence, the court made an unless order in respect of the damages claim. Applications concerning injunctive and declaratory relief were adjourned.

This judgment addressed interest and costs. The claimant sought interest on its US dollar damages claim, indemnity costs, and a payment on account of costs. The defendant did not appear or make representations.

1. The court accepted that, under section 35A of the Senior Courts Act 1981, it could award interest on the damages claim. Because the claim was expressed in US dollars, section 44A of the Administration of Justice Act 1970 permitted the court to select such interest rate as it considered fit.
2. The court applied the approach in Vis Trading Co Ltd v Nazarov [2013] EWHC 491 (QB). The six-month US dollar LIBOR rate was an appropriate benchmark, and interest at 2.25% above that rate was appropriate in the circumstances.
3. Indemnity costs were refused. The defendant’s conduct was not considered sufficiently unreasonable to justify that basis of assessment.
4. For a payment on account where there was an approved costs budget, the approved budget was the appropriate starting point. Applying the approach in McInnes v Gross [2017] EWHC 127 (QB), the court considered 90 per cent of the costs incurred. Because indemnity costs had not been ordered, it adopted the slightly lower figure of £350,000 rather than £369,000.
5. If the unless order was not complied with and judgment was entered, the claimant would be entitled to its costs of the claim, assessed if not agreed. The costs of the successful application, assessed at £29,352, were ordered to be paid within 28 days of the order.