Aymes International Limited v Nutrition4U BV & Ors

Permission to appeal requires a ground with a real prospect of success. A proposed appeal that merely re-argues matters fully considered at trial will not satisfy that threshold. Permission may also be refused where the proposed error would not affect the outcome.

Costs remain discretionary. The general rule that the unsuccessful party pays is only a starting point. The court must consider the overall result, partial success, conduct, admissible settlement offers and the justice of the proposed order. In a case where both parties achieve substantial success, costs may appropriately be shared, with assessment on the standard basis.

The court dealt with consequential matters following the trial of the claimant’s claim against the first defendant concerning the exercise of a share purchase option and the purchase of shares in the second defendant. In the substantive judgment, the court held that time was not of the essence, that the claimant remained entitled to specific performance, and that the consideration payable for the shares was substantial rather than nominal: [2023] EWHC 1452 (Ch).

The claimant sought permission to appeal on three grounds concerning the construction of the valuation formula, cross-examination on collateral matters, and findings affecting the credibility of its principal witness. The court also determined the incidence and basis of costs, including the effect of two Without Prejudice Save as to Costs offers.

1. Permission to appeal. Permission was refused on all three grounds. The challenge to the construction of the option agreement had no real prospect of success and amounted to a re-argument of matters decided after full consideration of the competing submissions. The proposed challenges concerning cross-examination and witness credibility likewise disclosed no real prospect of success.

2. In any event, the second and third grounds concerned matters going only to credit and reputation. Even if the claimant succeeded on them, the findings would not affect the ultimate decision. They therefore could not justify permission to appeal.

3. Costs. The starting point was that the unsuccessful party pays the successful party’s costs, but the court retained a discretion. Departure from that starting point required the justice of the case, assessed with caution. Relevant circumstances included the parties’ conduct, partial success and admissible offers to settle. The defendants’ Calderbank offer was relevant but did not attract the consequences applicable to an offer under Part 36.

4. Neither party was wholly successful. The claimant succeeded on entitlement to specific performance, while the defendants succeeded on the substantial price payable for the shares and resisted other relief. The claimant’s offer did not avert the litigation, and the defendants’ late offer left the parties to bear their own costs despite the claimant’s substantially greater costs exposure. Neither offer therefore altered the appropriate order.

5. The claimant was ordered to pay half of the first defendant’s costs, and the first defendant was ordered to pay half of the claimant’s costs, subject to detailed assessment on the standard basis if not agreed. There was no order for costs between the claimant and the second and third defendants, who were formal parties and caused no additional costs.

• High Court (Business and Property Courts): The substantive judgment determined the option and specific-performance issues and was cited as [2023] EWHC 1452 (Ch).
• High Court (Business and Property Courts): Permission to appeal from part of that judgment was refused, and consequential costs orders were made in the present judgment.