Betta Oceanway Company v SC Tomini Trading SR (Costs)

By an Application Notice dated 18 December 2023, Mr George Vatistas applied in these proceedings for an order pursuant to CPR r 3.1(2)(m) that he be added as a third-party intervenor permitted to make submissions to the Court; alternatively, for an order pursuant to CPR r 19.2(2), that he be added as a Defendant.

The application was heard by this court on 1 and 2 July 2024. At the conclusion of the hearing, I gave an ex tempore judgement dismissing both applications. As it was by then already late in the day the parties proposed that all issues in relation to costs be dealt with subsequently on paper, a proposal to which I gave my (reluctant) consent. I was reluctant because oral submissions on costs at the conclusion of a hearing tend to be appropriately focussed and short, whereas subsequent written submissions on costs can become overly detailed and complicated, as they proved to be. I am nevertheless grateful to the parties for their written submissions on the issue of costs.

Each party has served written submissions on costs. This was in addition to statements of costs served by each of the Claimant and the Defendant.

The above documents were provided to me 18 July 2024.

Each of the Claimant and the Defendant seeks its costs of and occasioned by the application to be paid by Mr Vatistas on the standard basis on the ground that it was the successful party and Mr Vatistas was the unsuccessful party.

Mr Vatistas contends that he should not be ordered to pay the Claimant’s or the Defendant’s costs and that the costs should lie where they fall i.e. with Mr Vatistas bearing his own costs and each of the Claimant and Defendant bearing its costs. In the alternative, he contends that the sums sought by the Claimant and the Defendant are unreasonable and disproportionate.

In my view both the Claimants and the Defendants are entitled to their costs of and occasioned by Mr Vatistas’ applications. My reasons are as follows.

First, Mr Vatistas, in his capacity as an applicant – both to intervene in the proceedings between the Claimants and the Defendants, and to be joined as a party to those proceedings – is a party to the applications which he instituted by Application Notice and the court has jurisdiction to make a costs order against him in connection with his applications. The jurisdiction arises because he is a party to the applications. It is unnecessary for the court to invoke the non-party costs order regime set out in CPR r.46.2.

Second, there is no merit in Mr Vatistas’ contention that the applications were made necessary (or caused) by the Claimant’s conduct. Mr Vatistas chose to make the applications to further his own personal interests. He was not obliged to make the applications.

Third, each of the Claimant and the Defendant has for the most part acted reasonably and proportionately in relation to the applications. The Claimant consented to the joinder, as it was required to do by Procedural Order No. 5 in the Arbitration, but on the basis that its consent was insufficient on its own and that it would be for the court to exercise an unfettered discretion and decide whether the joinder would be appropriate. The Defendant opposed both applications, as it was entitled to do, and its position was vindicated. The attendance of both parties at the hearing was necessary and each provided assistance to the court on the issues which arose for consideration.

Fourth, Mr Vatistas made the applications with his eyes open and it is reasonable to infer that he will have known the likely costs consequences in the event that the applications failed.

Fifth, Mr Vatistas succeeded on neither application. He was the unsuccessful party; and the Claimant and the Defendant were each successful parties. The ordinary rule (encapsulated in CPR r.44.2) is that the unsuccessful party should pay costs and there are no reasons peculiar to these applications which require or even suggest that it would be appropriate for the court to depart from the ordinary rule.

The Claimant invites the court summarily to assess its costs in the sum of £54,450.00 as set out in its Statement of Costs dated 3 July 2024. The Defendant invites the court summarily to assess its costs in the sum of £93,199.68 set out in its Statement of Costs dated 4 July 2024. It contends that the costs were proportionate and reasonable and that Mr Vatistas should be ordered to pay the costs within 14 days.

I have summarily assessed the Claimant’s costs in the sum of £40,000.00. In reaching this sum, I have made the following adjustments to the amount claimed (with rounding where I consider it appropriate):

I have summarily assessed the Defendant’s cost in the sum of £70,000.00. In reaching this sum, I have made the following adjustments to the amount claimed (with rounding where I consider it appropriate):

Accordingly, that Mr Vatistas is ordered to pay, within 14 days, the Claimant’s costs in an amount of £40,000 and the Defendant’s costs in an amount of £70,000.