ON APPEAL FROM COMMERCIAL COURT
(HIS HONOUR JUDGE CHAMBERS QC)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RIX
LORD JUSTICE JONATHAN PARKER
DUMFORD TRADING AG
Claimant/Respondent
-v-
OAO ATLANTRYBFLOT
Defendant/Appellant
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MISS JULIA DIAS (instructed by Baker & McKenzie of London) appeared on behalf of the Appellant
MR PHILLIP MARSHALL QC (instructed by Nabarro Nathanson of London) appeared on behalf of the Respondent
JUDGMENT
LORD JUSTICE BROOKE: As far as the costs are concerned, we are sticking with our second thoughts that the costs below and the costs of the appeal, including the costs before Lord Justice Clarke, should be reserved, leaving it to the Commercial Court judge, who has eventually to take decisions as to costs, to decide on the basis on which he has decided the case whether the Gomba rule should apply or whether some other rule drawing on Section 51 should apply.
We refuse leave to appeal to the House of Lords. We refuse the application for a conditional order on the grounds that the requirements of the practice direction are not satisfied in this case. The money paid by way of security for costs should stay in court pending the application for Part 24 judgment on the basis that the claimant undertakes to pursue that application timeously. The judge hearing that application can determine whether any set off is appropriate. We consider that the two actions - if the defendant decides to bring a second action - should be listed together from now on. We have decided not to make any order for the timing of the defence in the light of Miss Dias's submissions, and it is common ground that any challenge to the jurisdiction should be pursued before the Commercial Court judge. No particular order as to costs today. Costs of today to be part of the costs of the appeal.
MR MARSHALL: Can I mention one other matter - the challenge to the jurisdiction and the Part 24 application in the future? Logically if there is to be any challenge to the jurisdiction, that ought to be disposed of before anything else. We would obviously prefer, if we could, to see what the defence is going to be if that challenge fails at which point we would make our Part 24 application. That is the timescale we envisage.
LORD JUSTICE BROOKE: That will be on the transcript if a transcript is needed of our discussion today. That is understood.