BANK OF BARODA (acting by its Ras Al Khaimah branch) & Ors v GVK COAL DEVELOPERS (SINGAPORE) PTE LTD & Ors

Where an adjournment application succeeds, the court may order the application costs to be costs in the case, particularly where success was contested and the result became inevitable only when several factors were established. Wasted costs may separately be ordered against the party whose conduct materially caused the adjournment. That includes avoidable delay in seeking amendments and inadequate efforts to secure alternative expert evidence, even where the expert’s unavailability was not the party’s fault. The court may moderate an indemnity-costs order to costs on the standard basis where there is some force in the argument that better cooperation might have avoided the difficulty.

The claimants and defendants were involved in proceedings in the Commercial Court. The court had allowed an adjournment application, which had been contested. The adjournment resulted from two matters: the need to re-amend in relation to Indian law evidence and the unavailability of the defendants’ expert. The ruling concerned the allocation of the costs of the adjournment application and whether the defendants should pay wasted costs caused by those matters.

1. The costs of the adjournment application were ordered to be costs in the case. Although costs would ordinarily be ordered against a party seeking an adjournment, the application had succeeded after being contested. The result had been effectively inevitable, albeit by a slim margin, once the two relevant factors were established.

2. Wasted costs were treated separately. A substantial part of the adjournment resulted from the need to re-amend for the Indian law evidence. That application could and should have been made earlier, when no adjournment would have been required. The defendants were therefore required to bear the resulting wasted costs.

3. The defendants were also responsible for the consequences of their expert’s unavailability. The unavailability was not itself attributable to fault, but there were existing timetable difficulties and it did not appear that substantial efforts had been made to identify an alternative expert.

4. The wasted costs were ordered against the defendants on the standard basis, rather than the indemnity basis. The court considered that there was some force in the submission that better cooperation might have enabled matters to be managed without an adjournment. Any interim payment on account was to be agreed or determined at a short hearing.