Barclays Bank Plc v Scott Dylan & Ors

On applications for freezing relief, the normal costs rule differs from that governing ordinary interim injunctions. Costs should ordinarily follow the event because the court decides whether there is an arguable case, a risk of dissipation and whether relief is just and equitable. Those issues are generally discrete from the merits to be decided at trial.

The costs of the original without-notice hearing should normally be reserved, since the respondent had no opportunity to consent to an order. The court may also take account of conduct and rejected settlement offers when deciding the incidence and basis of assessment of costs.

Barclays Bank plc sought the continuation of freezing injunctions against defendants in two related proceedings. The respondents applied for an adjournment of the return hearing, but that application was dismissed earlier the same day, so the return hearing proceeded effectively.

The issue determined in this judgment was the incidence and basis of assessment of the costs of the adjournment application and the freezing-relief applications. The court considered whether the costs should be reserved pending trial, as commonly occurs with ordinary interim injunctions, or should follow the event.

1. Adjournment application. The respondents’ adjournment application had failed. Costs should therefore follow the event, and the respondents were ordered to pay the claimant’s costs of that application.
2. Freezing-relief applications. The normal rule on an application for the grant or continuation of freezing relief is that costs follow the event. The costs of the actual original without-notice hearing should ordinarily be reserved, because the respondent had no opportunity to agree to a freezing order by consent. The remaining costs should ordinarily be paid by the unsuccessful respondent.
3. The court distinguished the approach applicable to ordinary interim injunctions. Freezing relief involves consideration of whether the claimant has an arguable case, whether there is a risk of dissipation of assets, and whether relief is just and equitable. Those questions are generally discrete from the substantive issues at trial, where the question is whether the claimant has proved its case.
4. The court followed the reasoning in Bravo v Amerisur Resources plc [2020] EWHC 2279 (QB) and the approach in Darnitsa v Metabay Import/Export Limited [2021] EWHC 1471 (Comm). The ordinary interim-injunction authorities, including Desquenne et Giral UK Limited v Richardson [2001] Fleet Street Reports 1, Picnic at Ascot v Derigs [2001] Fleet Street Reports 2 and Melford Capital Partners LLP v Wingfield Digby [2020] EWCA Civ 1647, addressed a different form of relief.
5. The respondents’ conduct and failure to accept an earlier costs-saving offer justified costs in the claimant’s favour. The freezing-relief costs were to be assessed on the standard basis up to 6 April 2022 and on the indemnity basis thereafter. Detailed assessment was ordered, with payment on account. The costs of the actual without-notice hearings were reserved.

The judgment was a first-instance decision. It records that the respondents’ application to adjourn the return hearing had been dismissed earlier the same day; no appeal was determined.