Yangtze Navigation (Asia) Co, Limited & Anor v TPT Shipping Limited & Ors

Permission to appeal requires a realistic, not fanciful, prospect of success, or another compelling reason for the appeal to be heard. In a jurisdictional challenge, a claimant cannot rely on the possibility that disclosure or cross-examination may later repair an essential jurisdictional assertion. There must already be a plausible basis for the court to assert jurisdiction.

Under Civil Procedure Rules 1998, r 44.2(a), the court should generally order a reasonable sum on account of costs. The test is not an inflexible requirement to identify an irreducible minimum. The court should estimate likely recovery, allowing an appropriate margin for error and considering all relevant circumstances.

The claimants applied for permission to appeal the judge’s earlier findings concerning whether Forests and the Exporters were parties to certain charterparties and letters of indemnity, and whether the English court had jurisdiction. They relied principally on the possibility of further disclosure and cross-examination.

Forests and the Exporters applied for interim payments on account of their costs. The court therefore considered both whether the proposed appeals had a real prospect of success and the proper approach to assessing interim costs payments.

1. Permission to appeal refused. The proposed appeals did not have a real prospect of success under Pt 52.6(1) of the Civil Procedure Rules 1998. The applicable standard was a realistic, rather than fanciful, prospect of success.
2. The challenge to the finding that Forests was not party to the letters of indemnity was ill-founded. The complaint concerned the application of law to the available facts. On a jurisdictional challenge, a party cannot assert that disclosure or cross-examination may produce evidence establishing an essential jurisdictional fact. Matters should proceed only where there is already a plausible basis for the English court to assume jurisdiction.
3. The proposed appeal concerning the charterparties had no real prospect of success. The charterparty issue was relevant principally as background to the letters-of-indemnity claim. The disclosed contractual documents, the structure of the relevant arrangements and the absence of evidence supporting an agency relationship did not provide a plausible basis for the claim.
4. The proposed appeal concerning authorisations for issuing the letters of indemnity was likewise speculative. The relevant agreements prescribed an authorisation procedure, but there was no evidence that requests had been made or approved in accordance with it. The absence of an opportunity for further cross-examination did not justify allowing the issue to proceed.
5. For interim costs payments, the court adopted the approach stated in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm). Rule 44.2(a) creates a presumption in favour of payment of a reasonable sum. The court must estimate likely recovery, ordinarily allowing a prudent margin for error. Relevant considerations include likely recovery, recoverability, appeal prospects, the parties’ means, the timing of assessment, delay and the risk of overpayment.
6. The Exporters were awarded £550,000 and Forests £400,000, in each case with joint and several liability.

The application concerned permission to appeal from the judge’s earlier judgment handed down on 18 September 2024. No citation for that judgment is stated in the judgment.