Nori Holding Ltd & Ors v Public Joint-Stock Company 'Bank Otkritie Financial Corporation'

This judgment deals with costs following the hand down of my judgment dated 6^th June 2018 [2018] EWHC 1343 (Comm) in which I granted an injunction requiring termination of the Russian proceedings, refused an injunction to restrain the pursuit of the Cypriot proceedings, and deferred consideration of an indemnity in respect of those latter proceedings. In the meanwhile I refused permission to the defendant on paper to appeal from my decision relating to the Russian proceedings. The defendant renewed the application to the Court of Appeal, but Flaux LJ has now confirmed the refusal of permission. The claimants did not apply for permission to appeal against my refusal of an injunction relating to the Cypriot proceedings.

Although in one sense the outcome may be regarded as a score draw, with one injunction granted and the other refused, I regard the claimants as clearly the successful party in this litigation. They obtained an injunction relating to the Russian proceedings which was the main and most urgent focus of the litigation and their principal concern; it was those proceedings with which the Russian law evidence was solely concerned; the claimants were successful on four of the five issues argued (see [30] of the judgment); and it may be that they will be entitled to some relief from the court relating to the Cypriot proceedings (see [101] and [102]). The starting point, therefore, is that the claimants are entitled to their costs of the action.

The fact that a claimant fails on some issues does not necessarily mean that it should not recover all of its costs. However, the question whether an injunction could be granted to restrain pursuit of the Cypriot proceedings was an important and discrete issue. In my judgment the order for costs should reflect the claimants’ failure on this issue. This is best achieved by making a deduction from the costs to be awarded in favour of the claimants, rather than by attempting an issue based approach.

Taking these matters into account, I consider that the appropriate order is that the claimants should recover three quarters of their costs of the action.

Both parties have invited me to make a summary assessment of any costs awarded in order to avoid the expense of a detailed assessment and to enable them to concentrate their resources on the resolution of the substantive dispute. They have each submitted statements of costs. I will assess the costs summarily on the standard basis, recognising that a summary assessment necessarily involves a more broad brush approach than would apply on a detailed assessment.

The claimants’ total costs amount to £335,721.49 up to and including the date of the hearing while the defendant’s equivalent costs are £181,571. In addition the claimants have incurred further post judgment costs of £56,691.35, taking their total to £392,412.84. It is not surprising that the claimants’ costs of the action should be higher than the defendant’s. For example, the claimants had to incur the cost of applying for permission to serve the proceedings out of the jurisdiction and it was reasonable for them to serve reply evidence in response to the evidence served by the defendant.

Nevertheless, the disparity between the parties’ respective figures for costs up to the date of the hearing is significant, while the claimants’ post judgment costs seem particularly high, even allowing for the fact that they had to respond to the defendant’s application for permission to appeal and for a stay and that this involved the preparation of further Russian law evidence. I have to say also that the hourly rates charged by the claimants’ solicitors (£745 for a partner and £570 for an associate) also seem high, at any rate when considering the question of what costs should be visited upon the unsuccessful party.

Having considered the parties’ detailed submissions, I conclude that the appropriate figure for the claimants’ total recoverable costs before applying any discount would be £280,000. Accordingly the defendant must pay the claimants £210,000.