Frasers Group plc & Ors v The Official Receiver

An interlocutory appeal has a clear outcome when the appellant succeeds on the issue determined by the appeal. The usual approach is to deal with the costs of a distinct interlocutory appeal by reference to success on that appeal, rather than reserving costs until trial. The ultimate outcome of the substantive proceedings, or a contingent costs liability arising from an amended pleading, does not ordinarily justify reservation. A summary assessment may be inappropriate where the claimed costs are substantial and the assessment is conducted on written submissions without a sufficient opportunity to test the detailed claim. In that event, the court may direct detailed assessment and order a reasonable sum on account.

The judgment concerned consequential matters following the court’s earlier judgment, [2022] EWHC 3028 (Ch), which had allowed Frasers Group plc’s appeal and permitted amendments to its claim against Silver Point Capital LP and GLAS Trust Corporation Ltd.

The court was asked to settle the consequential order, give directions for amended pleadings and disclosure, determine the costs of the appeal, and decide whether Frasers’ costs should be summarily assessed or subjected to detailed assessment. The underlying amended claim included allegations concerning an offence under section 164 of the Insolvency Act 1986.

1. The court made the agreed order allowing the appeal and dismissing the Respondents’ Notices. Frasers was permitted to amend its claim against Silver and GLAS.
2. GLAS was directed to serve a Defence to the amended allegations by 4 pm on 13 January 2023. Silver was allowed the same period to serve an amended Defence, limited to matters raised by the amendments. Frasers could serve a Reply and amended Reply by 4 pm on 3 February 2023.
3. Further disclosure concerning whether Silver or GLAS had committed an offence under section 164 of the Insolvency Act 1986 was refused in the terms sought. In Silver’s case, the existing order appeared sufficient. In GLAS’s case, the existing order permitted a further application after the pleadings concerning the new allegation had closed. Any later application would be determined on its merits by ICC Judge Jones.
4. Silver and GLAS were ordered to pay Frasers’ costs of the appeal. The appeal was a distinct interlocutory step with a clear result. The usual practice was to determine its costs by reference to success on the appeal, rather than reserve them until trial. The possible outcome of the substantive claim, including any alleged breach of the Claims Release Deed, was not material to that decision.
5. Although the claimed costs were substantial and the court had concerns about their level and proportionality, summary assessment on written submissions and a single round of submissions risked injustice. Detailed assessment was therefore directed, with Silver and GLAS ordered to pay £75,000 on account within 21 days. The earlier costs order of the ICC Judge was set aside, and Silver was to repay the relevant sum to Frasers with interest at 2% above base rate.

1. High Court (Insolvency and Companies List) — The earlier interlocutory decision, [2022] EWHC 3028 (Ch), was appealed. The appeal was allowed and the present judgment dealt with consequential directions and costs.