Broseley London Ltd v Prime Asset Management Ltd

The threshold for indemnity costs is high. They should be ordered only where the conduct or circumstances take the case outside the norm. Serious allegations may be relevant, but they do not by themselves justify indemnity costs where the unsuccessful application raised legitimate issues requiring consideration. Costs may be directed to detailed assessment where the sum claimed makes that appropriate, even though the hearing was less than one day. A party seeking permission to appeal must identify a sufficient prospect of success or a fresh point of law; criticism of the application of established principles to the facts will ordinarily be insufficient.

The judgment concerned consequential matters following an earlier judgment granting Broseley London Ltd summary judgment and refusing Prime Asset Management Ltd a stay of execution. The court addressed interest, the basis and assessment of costs, directions for determining the parties’ true account, permission to appeal, and an email sent to the court by the claimant’s counsel.

The principal disputes concerned whether costs should be assessed on the indemnity basis, whether they should be summarily assessed, and whether permission to appeal should be granted.

1. Costs. The appropriate order was for the costs of the summary judgment and stay applications, rather than all costs of the action, because the proceedings would continue to determine the true value of the account. The costs were to be assessed on the standard basis. The court accepted that indemnity costs require something outside the norm. Although serious allegations had been made, the stay application raised legitimate issues concerning repayment and the interrelated accounts of the Broseley companies. The allegations therefore did not justify indemnity costs.
2. Assessment. Although summary assessment is the usual practice for a hearing lasting no more than one day under CPR PD 44, paragraph 9.2, the scale of costs sought, exceeding £100,000, made detailed assessment appropriate. A substantial payment on account was also appropriate, subject to the claimant providing a statement of the costs of the applications.
3. True value proceedings. The court directed the defendant to plead its proposed cross-claim and set-off within 56 days, with consequential directions for the claimant’s response.
4. Permission to appeal. Permission was refused. The first proposed ground concerned whether a true value adjudication could be pursued without first paying the sum found due in the earlier adjudication. The judge considered that his extension of the principle in S & T (UK) Ltd v Grove Developments [2018] EWCA Civ 2448 was consistent with that decision’s reasoning. In any event, other hurdles independently defeated the stay application. The remaining grounds challenged the application of established principles to the facts and disclosed insufficient prospects of success. An extension of 42 days was granted for an application to the Court of Appeal.
5. No decision was made on matters raised in the claimant’s email.

This was a first-instance consequential judgment. It followed an earlier judgment in the same proceedings, handed down on 21 April 2020, which granted summary judgment to the claimant and dismissed the defendant’s application for a stay of execution. Permission to appeal was refused, subject to a 42-day extension for applying to the Court of Appeal.