David Buwule v MT Finance Limited & Anor

An order providing a short period in which an existing interim-relief application may continue as a Part 7 claim does not prevent the claimant from commencing a fresh Part 7 claim in the ordinary way. Where that alternative route remains available, an application to extend the deadline may become unnecessary once the position is clarified. The court retains a broad discretion on costs. A costs order should not be made merely because an urgent extension application is not pursued, particularly where the need for the application arose from an understandable interpretation of the order and the relevant clarification was provided only shortly before the hearing. Earlier defaults and unpaid costs orders require a sufficient nexus with the costs of the later application.

The applicant had obtained an interim injunction restraining the respondents from selling property. At a subsequent hearing, the injunction was discharged and the court ordered that the existing proceedings would continue as a Part 7 claim if a claim form and particulars of claim were filed and served by 4pm on 7 May 2021. Otherwise, those proceedings would stand dismissed.

The applicant applied to extend that deadline to 30 July 2021, explaining that he wished to obtain legal assistance. At the hearing before Fordham J, the respondents accepted that the earlier order did not prevent the applicant from commencing a fresh Part 7 claim in the usual way. The applicant therefore did not pursue the extension application. The central issues were whether costs should follow that non-pursuit and whether earlier conduct and unpaid costs justified a costs order.

1. Alternative procedural route. The earlier order created an additional route by which the existing interim-relief proceedings could continue as a Part 7 claim. It did not curtail the applicant’s separate right, in principle, to commence a Part 7 claim afresh in the ordinary way. Such a claim would ordinarily be subject to the applicable pre-action requirements.
2. Application no longer pursued. Once the respondents accepted that a fresh Part 7 claim remained available, the applicant’s stated reason for seeking an extension was accommodated without extending the deadline. He therefore properly chose not to pursue the application.
3. Costs discretion. It was not just or appropriate to order the applicant to pay the respondents’ costs. The application had been issued before the deadline, and it was understandable that the applicant had treated it as requiring urgent determination. The material clarification that an extension was unnecessary was first advanced in a skeleton argument shortly before the hearing. Raising that point would have been a proper part of the respondents’ position on the application, rather than the provision of legal advice.
4. The respondents’ criticisms concerning earlier events related to the discharged injunction and an earlier costs order. The earlier costs order had not made payment a precondition to commencing a Part 7 claim. There was insufficient nexus between the unpaid costs and the costs incurred on the extension application. It was unnecessary to determine submissions concerning the likely merits of any future damages claim.
5. No order was made on the application to extend time. The respondents’ application for costs was refused.

The judgment records prior procedural steps but is not an appeal.

• 9 April 2021: Griffiths J granted an interim injunction.
• 16 April 2021: David Lock QC discharged the injunction, made a costs order, and provided for the existing proceedings to continue as a Part 7 claim if specified steps were taken by 7 May 2021.
• 6 May 2021: The High Court clarified that a fresh Part 7 claim remained available, recorded that the extension application was not pursued, and refused the respondents’ costs application.