HURRICANE ENERGY PLC & Ors v CHAFEE & Ors

An adjournment should be refused where the applicant has identified the hearing window, urgency requires determination, and no particularised explanation for non-attendance is provided.

A civil restraint order must be proportionate. The court should adopt the least extreme form capable of protecting the intended parties from further vexatious litigation. An extended order may be appropriate where a party has persistently issued claims or applications certified as totally without merit.

On an indemnity costs assessment, costs are assessed by reference to reasonableness rather than proportionality, with genuine doubt resolved in favour of the receiving party.

The court heard the 11th claimant’s application to set aside an order made on 6 August 2021 striking out its claim and an application for default judgment. Both applications had been certified as totally without merit. The claimant sought an adjournment but did not attend or appear by representation.

The first to ninth claimants and the defendants applied to strike out the set-aside application. The court also considered whether to impose a civil restraint order on Saret, the 11th claimant, and assessed the opposing parties’ costs. The central issues were whether the hearing should be adjourned, whether the set-aside application should succeed, whether an extended civil restraint order was justified, and what costs were reasonably recoverable.

1. Adjournment and set aside. The applications for an adjournment and to set aside the order of 6 August 2021 were dismissed. The hearing had been fixed within a window identified by the applicant, the proceedings were urgent, and no particularised explanation was provided for the absence of the applicant or its witnesses. The applicant had also failed to comply with directions requiring witnesses to attend with identification documents and to be available for cross-examination.
2. Totally without merit. The adjournment application and the set-aside application were certified as totally without merit. The court considered that the conduct had wasted court time, public resources and costs, and that the applications were bound to fail for the reasons previously given.
3. Civil restraint order. Under practice direction 3C of the Civil Procedure Rules 1998, the court had jurisdiction to make an order where Saret had persistently issued claims or made applications certified as totally without merit. There were four such applications, including the original claim, the default judgment application, the adjournment application and the set-aside application.
4. The court held that a civil restraint order must be proportionate and that the least extreme model capable of achieving the protective objective should be selected. An extended civil restraint order was appropriate because the litigation was vexatious, had imposed substantial and unnecessary costs on the Hurricane Group, and was supported in part by evidence the court found obviously dishonest. The order was made with the judge, or in his absence Mrs Justice Cockerill, as nominated judge.
5. Costs. The relevant costs were assessed on the indemnity basis. Rates above the London 2 guideline rates were reasonable in the unusual circumstances and under the significant time pressure. Certain attendances and fees were reduced, including the fees for attendance on others, the hearing attendances and counsel’s fees. Subject to those adjustments, the costs were assessed as claimed.

Not an appeal. The judgment concerned applications arising from the court’s order of 6 August 2021 striking out the claim and default judgment application.