Prashant Hasmukh Manek & Ors. v 360 One Wam Limited & Ors.

When assessing costs, the court may allow the hours reasonably claimed but restrict recovery to applicable Guideline Hourly Rates. A substantially higher rate requires a clear and compelling justification. Complexity, high value and alleged fraud are not, without more, sufficient where the current rates already address heavy Commercial Court work.

Where permission to appeal is refused but a renewed application remains possible, proceedings need not automatically be stayed. The court may protect the applicant by deferring acknowledgment of service and providing that a defence is served without prejudice to any appeal and does not amount to submission to the jurisdiction.

This was a consequential judgment following the dismissal of the defendants’ application to set aside an order granting permission to serve proceedings out of the jurisdiction: [2023] EWHC 710 (Comm). The court dealt with the claimants’ costs, the defendants’ application for permission to appeal, and directions for the continuation of the proceedings pending any renewed permission application or appeal.

The central issues were whether the claimants’ claimed solicitor rates were justified, whether the proposed appeal grounds had a realistic prospect of success, and whether service of an acknowledgment of service and defence should be delayed.

1. Costs. The claimants’ hours were reasonable and proportionate. Their recovery was nevertheless limited to the Guideline Hourly Rates because rates substantially above those guidelines require a clear and compelling justification. The asserted complexity, high value and international-fraud allegations were generic; the current London 1 rates already addressed heavy and complex Commercial Court work. Costs were summarily assessed on the hours claimed at the Guideline Rates, together with VAT, with no further discount. Additional consequential costs were allowed as claimed.
2. Permission to appeal. Permission was refused. The decision under Rome II that England was the place where the damage occurred under Article 4(1) was a straightforward application of the test, and the defendants could not show that India was the only permissible conclusion. Any challenge under Article 4(3) likewise had no realistic prospect because the centre-of-gravity assessment focused on all circumstances and the critical events making up the alleged torts. The arguments under Article 12 were unarguable. The challenge to the application of section 32 of the Limitation Act 1980 failed because the burden of proof had not been reversed. The finding that concealment could bring the alleged intimidation within section 32(1)(b) was also not realistically arguable.
3. Directions. The action was to proceed. The court adopted the practical compromise illustrated by Conversant Wireless Licensing v Huawei Technologies [2018] EWHC 1216 (Ch): acknowledgment of service was deferred, and service of the defence was without prejudice to any renewed permission application or appeal and was not a submission to the jurisdiction. The defendants were allowed until 25 May 2023 to serve the defence.

The judgment followed this court’s earlier decision dismissing the defendants’ application to set aside permission for service out of the jurisdiction: [2023] EWHC 710 (Comm). Permission to appeal was refused in the present judgment. The court made directions pending any renewed application to the Court of Appeal.