Tanner Courrier & Anor v HKA Global LLC & Ors

Costs following a breach of full and frank disclosure are fact-sensitive. There is no automatic rule requiring discharge of the order, loss of all costs, or indemnity costs. The court should consider the nature of the order, culpability, materiality, seriousness and extent of the failure, likely effect on the outcome, success on the issues, unreasonable conduct, proportionality, the interests of justice and deterrence. A limited, inadvertent breach in an on-notice service-out application may justify a reduction of costs on the standard basis. Pending an appeal application, proceedings may properly be stayed where case-management steps could cause irreversible costs prejudice to parties disputing jurisdiction.

This was a consequential-orders judgment following the court's substantive dismissal of applications by Christopher Beirise and Accuracy US LLC to set aside orders permitting service out and alternative service in HKA Group Holdings Limited's additional claim. The substantive judgment found a breach of full and frank disclosure but upheld the relevant jurisdictional and service conclusions: [2026] EWHC 1318 (KB).

The present issues were the costs of the ex parte service-out application, the inter partes set-aside application, and directions while permission to appeal remained available. The central questions were the proper costs sanction for the disclosure and fair-presentation failures and whether proceedings should be stayed pending any appeal application.

The court exercised its wide costs discretion under Part 44 of the Civil Procedure Rules 1998. It treated the authorities as establishing a fact-sensitive and proportionate approach to breaches of full and frank disclosure.

1. Ex parte costs. The respondent had breached its disclosure duty by omitting the Delaware interim decision and an associated argument by analogy. The omission was limited, inadvertent, not in bad faith, and unlikely to have affected the grant of permission. The respondent was ordered to bear its own costs of the ex parte service-out application.
2. Inter partes costs. The respondent was the successful party, but success was relevant rather than determinative. The court considered the nature of the application, the limited culpability and seriousness of the breach, the fact that the application was for service out rather than a freezing order, the likely outcome if disclosure had been complete, and the respondent's unreasonable failure to recognise the materiality of the omission. Authorities including Dar Al Arkan Real Estate Development Company v Al Refai [2012] EWHC 3539 (Comm), Tugushev v Orlov [2019] EWHC 2031 (Comm) and National Bank Trust v Yurov and Ors [2016] EWHC 1991 (Comm) supported a proportionate costs sanction.
3. There was no usual rule that a full-and-frank-disclosure breach attracts indemnity costs. The basis of assessment remained discretionary and fact-specific, as explained in Les Ambassadeurs Club v Albluewi & Ors [2020] EWHC 1368 (QB) and Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879. The applicants were therefore ordered to pay 50 per cent of the respondent's inter partes costs, assessed on the standard basis.
4. Directions. Because the applicants did not submit to the English jurisdiction, case-management orders before the appeal route was resolved risked irreversible prejudice. Proceedings were stayed until expiry of the 21-day period for seeking permission to appeal, or, if permission was sought, until that application was determined or the Court of Appeal ordered otherwise. If no application was made, acknowledgments of service were due within 28 days and defences 28 days thereafter.

Permission to appeal was refused, subject to renewal to the Court of Appeal. The parties were directed to agree an order reflecting the judgment.

• High Court (King's Bench Division). The present first-instance consequential-orders judgment followed the substantive judgment dismissing the challenges to the service-out and alternative-service orders: [2026] EWHC 1318 (KB) .
• Permission to appeal. Permission was refused in the present proceedings. The applicants could renew their applications to the Court of Appeal within 21 days; no appellate decision is stated.