Don Benyatov v Credit Suisse Securities (Europe)

On amendment applications, the usual order is that the party obtaining permission pays the reasonable costs caused by the amendment. That principle must be balanced against the general costs discretion, including the need to avoid requiring payment for unreasonable or largely unsuccessful objections. Where a procedural contest produces no clear winner, the costs may properly be ordered to be costs in the case.

Permission to appeal a strike-out decision should be refused where the pleaded claim has a realistic prospect of success and important legal issues are better determined after evidence at trial. A trial date should ordinarily be retained where the existing case remains substantially intact and the party seeking an adjournment has not shown that preparation cannot reasonably be completed.

The claimant brought a substantial claim against the defendant arising from his work in Romania and subsequent arrest and criminal proceedings. The court had already dealt with strike-out, security for costs, interim costs, and amendments to the Particulars of Claim.

This judgment addressed finalisation of the amended pleading, the costs of the amendment and strike-out applications, permission to appeal the earlier judgments, whether the April 2021 trial window should be vacated, and consequential case-management directions.

1. Amendments and pleading. The remaining objections to the amended pleading were determined individually. Most amendments were permitted, subject to particularisation. An amendment reintroducing a previously refused allegation was refused. Permission to rely on Annex A was granted because the documents could intelligibly illuminate the environment in which the claimant worked, and the defendant could deal with them before trial.
2. Costs. The usual rule is that a party obtaining permission to amend pays the costs of and caused by the amendment. That principle was supported by Taylor v Burton [2014] EWCA Civ 21, Practice Direction 17 and Practice Direction 44. The claimant was ordered to bear the costs of drafting the amendments and the reasonable costs of consequential amendments to the Defence. Costs attributable to incorporation of the former RRFI were costs in the case. The defendant’s extensive and largely unsuccessful objections created a substantial procedural contest with no clear winner, so the costs of preparing for and attending the October hearing were also costs in the case, assessed on the standard basis. The defendant was ordered to pay the claimant’s costs of the strike-out application.
3. Permission to appeal. The judge confirmed that the test applied in the first judgment was whether the claimant had a realistic prospect of success. Important issues of law, where the claim had more than a fanciful prospect of success, should be considered against facts found at trial rather than determined summarily. Permission to appeal all five judgments was refused. Permission to appeal the case-management decisions in this judgment was also refused.
4. Trial and directions. The April 2021 trial window was retained. The surviving pre-arrest case remained fundamentally the same, and the defendant had not demonstrated that it could not prepare in time. Directions were given for an Amended Defence, Amended Reply, disclosure, witness statements, expert discussions and reports, revised costs budgets, and a costs-management hearing.

The judgment records earlier interlocutory decisions in the same proceedings:

• High Court (Queen’s Bench Division): the first judgment dismissed the security applications and substantially determined the strike-out application.
• High Court (Queen’s Bench Division): subsequent judgments dealt with costs, interim payment, and amendments to the pleading.
• High Court (Queen’s Bench Division): in the present judgment, permission to appeal was refused. The judge noted that an application might be renewed before the Court of Appeal.