CC/Devas (Mauritius) Ltd & Ors v The Republic Of India

Permission to appeal may be granted where an issue concerning state immunity has implications beyond the dispute and presents another compelling reason under CPR 52.6(1)(b), even where the court does not determine whether the appeal has a real prospect of success.

Costs of a preliminary issue ordinarily follow the event. However, the court retains an exceptional discretion to reserve costs where the issue forms part of wider enforcement proceedings, substantial arbitration awards remain in dispute, and deciding costs immediately could produce injustice or require later set-off.

The decision concerned consequential matters following the court’s judgment on the question whether India had submitted to the jurisdiction of the English courts by ratifying the New York Convention 1958, within section 2(2) of the State Immunity Act 1978. India had succeeded on that question in proceedings concerning enforcement of arbitration awards under section 101 of the Arbitration Act 1996.

The fourth to sixth claimants sought permission to appeal, while the parties disputed the appropriate costs order and the form of the resulting order. The central issues were whether permission should be granted for another compelling reason and whether costs should be ordered immediately or reserved.

1. Permission to appeal. Permission was granted under CPR 52.6(1)(b) because the issue had implications for state immunity beyond the dispute. The question was particularly suitable for appellate consideration in light of the Court of Appeal’s discussion in Infrastructure Services Luxembourg SARL v Kingdom of Spain [2025] 1 Lloyd’s Rep 66 concerning the different possible effect of ratification of the New York Convention 1958 and the ICSID Convention.
2. Costs principle. India was the successful party on the discrete section 2 question. The fact that the claimants had reasonably pursued that question in an attempt to simplify the proceedings did not, by itself, justify withholding the usual costs consequence. The general expectation is that costs of a preliminary issue will be decided when that issue is determined, as recognised in Redstone Mortgages v B Legal [2015] EWHC 745 (Ch) and Unwired Planet International Ltd v Huawei Technologies Co., Ltd [2015] EWHC 3837 (Ch).
3. Exceptional reservation of costs. The present case was different because the arbitration awards had been upheld in the courts of the seat and in other jurisdictions, while remaining disputed in England. If the claimants ultimately succeeded, India’s costs might be set off against the sums payable under the awards. It would therefore be unjust to determine the incidence of costs immediately. Costs were reserved for determination at the conclusion of the proceedings, including any unresolved assignment issues.
4. The court expressed the provisional view that, if a payment on account had been required, £330,000 would have been appropriate, reflecting likely reductions on assessment but the importance of the issues.

• High Court (Commercial Court): following the judgment on the substantive preliminary question at [2025] EWHC 964 (Comm), permission to appeal was granted on the ground of another compelling reason. Costs were reserved.