DVB Bank SE & Anor v Vega Marine Ltd & Ors

Where a judgment debt is expressed in a foreign currency, the court may exercise its statutory discretion to set post-judgment interest by reference to the currency concerned. A contractual term preserving interest after judgment may entitle the creditor to recover the contractual rate where it exceeds the otherwise applicable statutory rate.

A successful party may recover costs under ordinary procedural principles and, where the contract provides for costs, under the contractual provision. Contractual costs are presumed reasonably incurred and reasonable in amount, but that presumption is rebuttable. Summary assessment remains available and does not constitute a regime of automatic full recovery.

The claimants had obtained judgment on 10 June 2020 against the borrowers and guarantor for approximately US$11.7 million, with contractual interest. The defendants did not participate in the proceedings or make submissions on consequential matters.

The court therefore determined on paper the appropriate rates of pre- and post-judgment interest, the claimants’ entitlement to costs under the contractual documents and the procedural rules, whether the costs should be summarily assessed, and the amount recoverable.

1. Interest. The claimants were entitled to pre-judgment interest at 3.5% per annum under the Fourth Supplemental Agreement and the Guarantee. The contractual provisions stated that the rate applied after as well as before judgment. Although section 17 of the Judgments Act 1838 ordinarily provided for 8% interest, section 44A of the Administration of Justice Act 1970 empowered the court to vary the rate for a judgment expressed in a foreign currency. The court would otherwise have been likely to award a rate appropriate to US dollars, such as the US Prime Rate. The contractual rate was slightly higher and was therefore payable after judgment.
2. Costs entitlement. The claimants were entitled to their costs under CPR 44.2(2)(a), having succeeded on each application, with no reason to depart from the ordinary starting point. They were also contractually entitled to costs under clause 8.1 of the Fourth Supplemental Agreement. A demand had been effectively served by email. The contractual notice provision preserved validity where non-compliance caused no significant loss or prejudice.
3. Summary assessment. The court had power under CPR 44.6(1) to assess the costs summarily. The costs statement was below the £100,000 figure identified in paragraph F.14.2 of the Commercial Court Guide, and no substantial grounds for disputing the amount had been shown. Summary assessment was appropriate.
4. Quantum. Under CPR 44.5, contractual costs were presumed reasonably incurred and reasonable in amount, subject to rebuttal. The court also considered the standard-basis criteria in CPR 44.3 and 44.4. The work, rates, staffing and disbursements were broadly reasonable, but full recovery was not appropriate. The costs were summarily assessed at £91,500.
5. Interest on costs. Interest on the costs award was ordered under CPR 44.2(6)(g) at 8% per annum from judgment until payment, because the costs had largely been incurred in sterling.

The judgment dealt with consequential matters following the court’s judgment of 10 June 2020. No separate appellate history is stated.