CRF I Limited v Banco Nacional De Cuba & Anor

Where a costs order grants a party the costs of issues specifically raised by its application, that ordinarily means costs of issues specific to that application. It does not include overlapping costs incurred on issues raised by another party’s application. The court should give effect to the original costs order in a manner that avoids undermining its allocation of costs on the parallel application.

An interim payment may be ordered where entitlement is clear but the precise recoverable sum requires further assessment. In the absence of a reliable breakdown, the court may adopt a safe estimate and apply an appropriate percentage. Detailed assessment will generally await the conclusion of the proceedings under Civil Procedure Rules 1998, r 47.1.

The judgment concerned consequential costs issues arising from CRF’s claim against Banco Nacional de Cuba and the Republic of Cuba under assigned debt agreements and a guarantee. Cockerill J had dismissed BNC’s jurisdiction challenge but upheld Cuba’s challenge, and ordered BNC to pay CRF’s costs while granting Cuba the costs of issues specifically raised by its application on which it succeeded.

The present hearing determined the meaning and scope of that costs order, Cuba’s application for an interim payment, and CRF’s application to commence detailed assessment of its costs against BNC before the conclusion of the proceedings.

1. Construction of the costs order. The reference in paragraph 8 of the Judgment Order to issues specifically raised by Cuba’s application meant issues specific to Cuba’s application. An issue common to both Cuba’s and BNC’s applications was not specific to Cuba. That construction preserved paragraph 6, under which CRF was entitled to BNC’s application costs notwithstanding losses on some issues.
2. The Cuba-specific issues comprised the 1976 Issue; the Ratification Issue insofar as evidence extended beyond what was needed for the 1976 Issue; the 2020 Withholding Issue insofar as based on a criminal investigation; and ostensible authority. Costs were recoverable only insofar as they were specific to Cuba, including Cuba-specific disclosure and evidence. Overlapping costs were excluded. (See paras [14]–[20].)
3. Interim payment. Cuba had established an entitlement to costs, so an interim payment could not properly be fixed at nil. Since Cuba had not yet produced a breakdown identifying its Cuba-specific costs, the court adopted £500,000 as a safe present estimate and ordered payment of 60 per cent, namely £300,000. CRF was to pay that sum to Cuba within 21 days. The proposed payment by BNC was rejected because no sum had been set aside and BNC was a separate entity. (See paras [21]–[27].)
4. Detailed assessment. The general rule under Civil Procedure Rules 1998, r 47.1, is that costs are not assessed by detailed assessment until the proceedings conclude. No sufficient reason existed to disapply that rule where CRF had received a substantial payment on account and the Judgment Order provided for interest on costs. CRF’s application was therefore dismissed. (See paras [28]–[30].)

High Court (Commercial Court): Cockerill J’s earlier jurisdiction judgment resulted in BNC’s challenge failing and Cuba’s challenge succeeding. Her consequential costs order was later varied so that the remaining costs issues would be determined at a stand-alone costs hearing.

Court of Appeal: BNC’s appeal against the jurisdiction determination was dismissed in November 2024. Permission to appeal to the Supreme Court was refused on 31 March 2025.

High Court (Commercial Court): The present judgment determined the two outstanding costs applications.