H&P Advisory Limited v Barrick Gold (Holdings) Limited

A claimant who rejects an unconditional payment which would satisfy the claim ultimately established cannot ordinarily recover pre-judgment interest for the period during which its own choice caused the non-payment. For US dollar awards, the default base rate is US Prime, regardless of the claimant’s place of business. The court should not investigate the claimant’s detailed finances, but may consider the general characteristics of its business class. For professional advisory firms, a modest uplift over US Prime may reflect uncertainty about the effect of non-payment. The Part 36 safety valve is a formidable one. Costs consequences should ordinarily follow where the claimant fails to beat the offer, even by a small amount.

This was a consequential matters judgment following the substantive decision in H&P Advisory Limited v Barrick Gold (Holdings) Limited ([2025] EWHC 562). Although H&P failed on its contractual claim for an advisory fee, it recovered US$2m by way of restitutionary quantum meruit, together with reasonable expenses.

The court determined the recoverable expenses, the appropriate rate and period of pre-judgment interest, the consequences of Barrick’s Part 36 offer, and the parties’ entitlement to costs. The central issues were whether H&P’s rejection of an earlier unconditional US$2m offer affected interest and costs, whether the Part 36 consequences would be unjust, and how the mixed success should be reflected in the costs order.

1. Reasonable expenses. Barrick was liable for expenses reasonably attributable to the services provided. A general business subscription was only partly recoverable because it also served H&P’s wider corporate purposes. Travel requested for a client meeting was recoverable in full. Travel for a junior employee was recoverable where the adviser reasonably considered that attendance necessary or important for the client’s work.
2. Pre-judgment interest. Interest compensates a successful claimant for being kept out of money which ought to have been paid. For a US dollar obligation, the appropriate default base was US Prime, following LoneStar Communications Corporation LLC v Kaye. The court should not conduct a detailed inquiry into the claimant’s finances, following Fiona Trust & Holding Corp v Privalov and Carrasco v Johnson. A professional advisory firm has materially different financial characteristics from an ordinary commercial company. An uplift of 1% over US Prime was therefore appropriate.
3. Interest ran only from the letter before action. H&P had rejected an unconditional US$2m offer and pursued a contractual claim instead. Following the reasoning of Arden LJ in Benedetti v Sawiris, it would be inappropriate to compensate H&P for being kept out of money where its own deliberate choice caused the non-payment. The same reasoning applied to expenses.
4. Part 36. H&P recovered US$2,227,745 by the expiry of the relevant period, and therefore failed to obtain a judgment more advantageous than Barrick’s US$2,230,000 offer under Civil Procedure Rules 1998, rule 36.17. The circumstances did not make the usual consequences unjust. H&P was awarded 50% of its costs for the period after Barrick’s US$1m offer and before the Part 36 offer. The ordinary Part 36 consequences applied thereafter.
5. Any consequential costs caused directly by Barrick’s amended defence were payable by Barrick. The costs of H&P’s disclosure application concerning Mr Klein’s fees were costs in the case.

This was a first-instance consequential matters judgment following the court’s substantive judgment in H&P Advisory Limited v Barrick Gold (Holdings) Limited ([2025] EWHC 562).