Saudi Arabian Airlines Corporation v Sprite Aviation No.6 DAC

Extensions of time for disclosure should be managed proportionately and by reference to the actual procedural risk. An unless order is a remedy of last resort and is inappropriate where ordinary case-management measures, including a prompt reporting undertaking, adequately protect the opposing party. Indemnity costs require conduct outside the norm reasonably to be expected in commercial litigation. The mere need for an extension, incomplete early information, or the additional work caused by a late explanation will not automatically justify indemnity costs. Costs on the standard basis are limited to work that was reasonable and proportionate, and to reasonable and proportionate amounts. Guideline hourly rates are the starting point; higher rates require clear justification.

The defendant sought ancillary orders following an extension of time granted to the claimant for exchanging disclosure certificates and extended disclosure lists. The dispute arose from delays and late explanations concerning difficulties created by Saudi data protection laws. The defendant sought extensive solicitor-reporting obligations and an unless order providing for strike-out if the extended deadline was missed.

The court accepted that the proposed disclosure process was conventional and that the claimant’s solicitors would remain appropriately involved. It therefore refused the proposed ancillary disclosure orders, while accepting an undertaking to report promptly if the extended deadline might not be met. The court then determined responsibility for the application’s costs and summarily assessed the defendant’s costs.

1. The extension of time was granted subject to a recital recording the evidential basis for the order and an undertaking by the claimant’s solicitors to notify the defendant’s solicitors within one working day of becoming aware that the 8 August 2025 deadline would not or might not be met. The proposed solicitor-monitoring obligations and unless order were refused. An unless order is a last-resort case-management measure, as explained in Michael Wilson & Partners v Emmott, and was unnecessary where the undertaking adequately addressed the remaining risk.

2. The claimant was ordered to pay the defendant’s costs of and occasioned by the application. The application could have been avoided by compliance with the original directions or by a full and frank application for an extension at an earlier stage.

3. Indemnity costs were refused. Applying the Excelsior test, none of the claimant’s delays, late explanations, or initial ambiguity about the disclosure process, individually or collectively, constituted conduct outside the norm reasonably to be expected in commercial litigation. The exceptional nature of indemnity costs meant that aggravating or incomplete information was insufficient.

4. The costs were assessed on the standard basis. Recoverable work had to be reasonable and proportionate, and the amount allowed had to be reasonable and proportionate. The court applied the guidance in Kazakhstan Kagazy Plc v Zhunus that proportionality requires the minimum sum necessary for a proper job. Following Samsung Electronics Co. Ltd v LG Display Co. Ltd [2022] EWCA Civ 466, guideline hourly rates were the starting point and higher rates required clear justification. London 1 rates were allowed because of the size of the claim, but substantial reductions were made for duplicated or excessive solicitor, counsel, travel and costs-lawyer work. Leading counsel’s fees were disallowed as disproportionate.

   The defendant’s costs were assessed with those adjustments.