J Robbins Capital Partners Limited v Zamsort Limited & Ors

The court may use its inherent jurisdiction and case-management powers to enforce unpaid costs orders, but any sanction must remain proportionate and compatible with Article 6. A stay or conditional order will usually be appropriate where payment appears possible, subject to a short opportunity to comply. Where the party shows, by detailed, cogent and frank evidence, that it neither has nor can raise the required funds, and that enforcement would probably stifle an arguable claim or defence, access to justice weighs strongly against a case-determinative sanction. The court must consider all available enforcement options and the circumstances of the case. The existence of an unpaid costs order does not itself establish misconduct, and the merits will ordinarily be of limited relevance.

The claimant sought permission to serve amended particulars of claim in a commercial claim concerning alleged loss of fees following an introduction between mining businesses. The second and third defendants accepted the amendments in substance but sought a condition requiring payment of outstanding costs orders. They also sought a stay until payment.

The outstanding orders exceeded £60,000. The claimant relied on impecuniosity and argued that the proposed orders would stifle its claim. The court considered the proper approach to enforcement, the burden of proving inability to pay, potential sources of funding, proportionality under Article 6, and the relevance of the claim’s merits and prior procedural conduct.

1. Jurisdiction and discretion. The court may use its inherent jurisdiction and case-management powers to secure compliance with final or interim costs orders. Whether to impose a sanction, condition or stay is discretionary and depends on all the circumstances.
2. Policy and enforcement. Prompt payment of costs serves legitimate purposes: it encourages careful litigation decisions, deters marginal or harassing applications, and ensures that successful parties are paid without delay. The court should consider the full range of enforcement mechanisms, including sanctions, conditions and stays. A sanction will often follow where payment appears possible, normally after a short further period for compliance.
3. Stifling and Article 6. The party asserting that enforcement would stifle its claim bears the burden of proof. It must establish on the balance of probabilities, by detailed, cogent and frank evidence, that it neither has nor can raise the money required. Relevant resources include funds available from an owner, shareholder or other closely associated person, but the party need not exhaust remote or theoretical sources of support. The court must assess whether the proposed order would impair the essence of the right of access to a court under Article 6.
4. Application. The claimant’s evidence established that neither the company nor its sole shareholder could pay. Earlier family and friends’ loans did not show that further funding of more than £60,000 was realistically available. Commercial litigation funding had been seriously explored without success, and the court rejected the submission that lack of funding necessarily demonstrated a hopeless claim. The claimant had therefore shown on the balance of probabilities that the claim would probably be stifled.
5. The unpaid orders remained binding, but the court declined to make payment a condition of amendment and declined to stay the proceedings. The amendments were allowed on the usual costs terms. An indemnity costs order was refused.

The claim was issued in the Commercial Court in February 2021. Earlier procedural orders included a stay for non-payment of the issue fee and costs orders made in applications before other judges. The present judgment determined the amendment and stay applications at first instance.