Bravo & Ors v Amerisur Resources Plc

Costs in a freezing-order application are not governed automatically by the approach applicable to ordinary interim injunctions based on the balance of convenience. The court may determine costs immediately where the relevant issues are not likely to be materially re-evaluated at trial. A freezing order depends on matters such as a good arguable case, risk of dissipation and whether it is just and convenient to grant relief. A later failure of the substantive claim does not necessarily show that the freezing order was wrongly made. Costs may nevertheless be apportioned to reflect partial success, concessions, undertakings, quantum and procedural non-compliance.

The claimants brought proceedings concerning alleged environmental contamination in Colombia and applied for freezing orders against the defendant, an English company. Steyn J granted and subsequently varied interim freezing orders following hearings on 9 January, 13 January and 3 February 2020. The parties resolved the substantive freezing-order application, leaving the High Court to determine costs.

The issues were whether costs should be reserved until trial, as in some ordinary interim injunction applications, and how costs should be allocated across the individual hearings.

1. Costs regime for freezing orders. The court held that freezing-order applications form a distinct category from ordinary interim injunctions based on the balance of convenience. The decisive questions include whether there is a good arguable case, a risk of dissipation, and whether it is just and convenient to grant the order. Those matters are not necessarily subject to meaningful re-evaluation at trial. A later failure on the merits would not by itself establish that the freezing order was wrongly made.
2. The approach in Taylor v Burton [2014] EWCA Civ 21, that the successful party on an interim application will commonly receive its costs immediately, supported making a costs order at this stage. The reasoning in Picnic of Ascot v Kalus Derigs [2001] Fleet Street Reports p.2, concerning ordinary interlocutory injunctions determined by the balance of convenience, was not wholly applicable to freezing orders.
3. Allocation of costs. The claimants succeeded on the 9 January application but did not obtain all the relief sought and only gave the cross-undertaking when the judge required it. They were awarded 70% of those costs. No order was made for the 13 January hearing because the defendant had acted reasonably in responding to a precipitous application and giving an undertaking. The claimants received 50% of the costs of the 3 February hearing because the variation depended on the court granting an indulgence despite non-compliance with joinder formalities.
4. The court declined a forthwith assessment because the costs issues were complex and might overlap with the substantive claim. It ordered an interim payment on account of costs of £125,000, subject to reconsideration if the claimants supplied further evidence or submissions on costs distribution.

Not an appeal. The judgment determined costs arising from interim freezing-order hearings before Steyn J.