BRG Noal GP S.à r.l. & Anor v Stefan Kowski & Anor

1. MRS JUSTICE JOANNA SMITH: The claimants now seek permission to appeal further to a judgment that I have handed down this morning, 11 April, on various grounds identified in a skeleton argument in which they set out in some detail the purposed grounds for their appeal. I have also heard Mr Marshall’s detailed oral submissions, together with submissions from Mr Strong in opposition. Having had careful regard to those submissions, I am not going to grant permission to appeal (essentially for the reasons provided by Mr Strong), and the claimants must seek such permission from the Court of Appeal, should they wish to do so. In my judgment, the claimants would have to overcome a number of hurdles if they were to succeed in any appeal; I do not consider an appeal to have any real prospect of success and nor is there some other compelling reason for the appeal to be heard. I am not going to deal now with each of the various grounds that has been identified in the claimants’ skeleton but will set them out in brief in my reasons for refusing permission in the relevant form. In short, I accept the submissions made by Mr Strong in opposition to Mr Marshall, and those will form the basis for my reasons for refusing permission. (After further submissions)

2. The defendants now apply for indemnity costs in relation to this matter.

3. The test that I should apply in relation to an application for indemnity costs is not in dispute. The defendants must convince me that the claimants’ conduct is out of the norm, and the relevant test and factors to be taken into account are set out in the White Book starting at 44.3.8. Ms Nanchahal also showed me factors identified in the case of Three Rivers DC v Bank of England [2006] EWHC 816 (Comm) and Mr Marshall drew my attention to the case of Digicel (St Lucia) Ltd & Ors v Cable & Wireless plc & Ors [2010] EWHC 888 (Ch) per Morgan J at 16, quoting Colman J in National Westminster Bank plc v Rabobank Nederland (No 2) [2008] 1 All ER (Comm) 243 as follows: “Where one is dealing with the losing party’s conduct the minimum nature of that conduct required to engage the court’s discretion would seem, except in very rare cases, to be a significant level of unreasonableness or otherwise inappropriate conduct in its widest sense in relation to that party’s pre-litigation dealings with the winning party or in relation to the commencement or conduct of the litigation itself." I have heard detailed submissions in written and oral form from all parties and I take those into account in making my decision.

4. I am not going to make an order for indemnity costs. Whilst no doubt there are grounds identified by the defendants in their skeleton arguments to criticise elements of the claimants’ conduct, I do not consider that those elements are sufficient to amount to conduct which is outside the norm such that an award of indemnity costs is justified.

5. In short, the claimant has brought a claim here in the Court of England and Wales as of right. The fact that it lost that claim is not in itself, of course, a reason to award indemnity costs. This was a complex and difficult case involving, effectively, an anti-suit injunction together with an application to stay on forum non conveniens grounds. It clearly raised numerous issues which the claimants were entitled to raise and none of which I consider to have been unreasonable in the sense that would have been required if I were to make an order for indemnity costs. The issue of forum non conveniens was not a clear point prior to the hearing in the sense that certainly Mr Lueken had not made clear his willingness to submit to the Luxembourg jurisdiction until the morning of the hearing.

6. As for the claimants’ conduct in pursuit of the proceedings, in my judgment that conduct was not particularly unusual in hard-fought, fast-moving injunction proceedings of this sort. At the time of the ex parte hearing the claimant had various outstanding concerns which it legitimately raised. Meade J accepted the need for expedition. At that time the status of the Luxembourg proceedings was thought to be such that an injunction was required as a matter of urgency. However, that status changed between the date of the hearing before Meade J and the hearing before me such that urgency became less of an issue. Late material was provided to the court prior to the hearing before me, as I identified in my judgment, but that was not in itself sufficient to amount to conduct justifying an award of indemnity costs. That was, I consider, a function of the very tight timetable that had been imposed in light of the perceived urgency. In fact, the late evidence was dealt with pragmatically by all of the parties and did not prejudice any of them in the way in which the proceedings were dealt with.

7. In my judgment, therefore, the defendants have not shown a significant level of unreasonableness or otherwise inappropriate conduct on the part of the claimants and I reject the application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE Email: [email protected] This transcript has been approved by the Judge