Global Energy Horizons Corporation v Gray

When deciding whether to extend time for payment and disclosure under an existing order, the court may reconsider the practical consequences of the proposed arrangements. It should weigh the legitimate benefit to the receiving party of using information against the prejudice said to arise from that use. A restriction should not be imposed merely because communications may make funding more difficult where the asserted prejudice is speculative or overstated. The court may also depart from the conditional structure of an earlier order where the matter has returned for an extension and the relevant benefit and prejudice can properly be assessed afresh.

The claimant applied for a further extension of time to pay £1,624,357 on account of the defendant’s costs under an order made by Arnold LJ on 4 October 2019. That order required disclosure of litigation-funding information if payment was not made by the specified date. A previous extension had been granted on 11 November 2019.

The parties agreed that payment could be made by 4.00 pm on 6 December 2019, that the funding information would be provided earlier, and that the defendant would not use it before 6 December. The dispute was whether, if payment was made by that date, the defendant should thereafter be prevented from using the information to pursue funders for outstanding costs.

1. Application granted in part. The time for payment was extended to 4.00 pm on 6 December 2019. The disclosure date was advanced to 4.00 pm on 25 November 2019. The defendant agreed not to use the information before 6 December 2019.
2. The defendant had a legitimate benefit in being able to use the funding information after 6 December, even if the claimant paid the sum due on account. The timing of a claim against funders could matter, because delay might later be relied upon against the defendant. The defendant might also have a strong claim against past funders for ordered costs if the claimant did not pay them.
3. The alleged prejudice to the claimant from communications with funders did not justify the proposed restriction. The claimant would itself need to explain the funding difficulties, the costs liability and the possibility of claims against past funders. The additional prejudice said to arise from communications by the defendant’s solicitors was therefore overstated.
4. The court was not required to preserve the conditional structure of the earlier order. The earlier hearing had proceeded on the basis of conditionality. On the present application, the court assessed the competing benefit and prejudice afresh and was not persuaded that a restriction was justified.
5. The proposed alternative arrangement, under which the claimant would write to the funders with a letter discussed or approved by the court or the defendant, was also refused. The defendant was not restricted from using the information after 6 December 2019.
6. On the later costs assessment, proportionality required a summary assessment of £5,000 for the defendant’s costs.