BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Benedetti & Anor v Sawiris & Ors [2009] EWHC 1806 (Ch) (21 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/1806.html Cite as: [2009] EWHC 1806 (Ch) |
[New search] [Printable RTF version] [Help]
CHANCERY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
(1) ALESSANDRO BENEDETTI (2) M FINANCE SA |
Claimants |
|
- and - |
||
(1) NAGUIB ONSI NAGUIB SAWIRIS (2) APRIL HOLDING (3) OS HOLDING (4) CYLO INVESTMENTS LIMITED |
Defendants |
____________________
Mr Richard Hill (instructed by Kirkland & Ellis International LLP) for the First and Fourth Defendants
Mr Adrian Beltrami QC (instructed by Simmons & Simmons) for the Second and Third Defendants
Hearing date: 7th July 2009
____________________
Crown Copyright ©
Lord Justice Patten :
Judgment sum: joint or several liability?
(i) April : 60.4%
(ii) OSH : 31.4%
(iii) Cylo : 8.2%
He accepts that Mr Sawiris should be made jointly liable with Cylo for the 8.2%.
Interest
Costs
"For these two reasons the exercise of discretion by the judge was vitiated by an error of principle. If he had asked himself who was the successful party, before segregation of the effective costs of proving the quantum meruit claim, he would in my judgment have had to answer that it was the claimants who recovered more than the defendants had ever offered and thus it must be the claimants who were the successful party. The question would then be what proportion, if any, of their costs should they recover. That question is now for this court. The judge was, of course, correct to be influenced by the fact that most of the time spent in court was spent on an issue on which the claimants failed and that that issue was whether one of the claimants' employees had acted dishonestly, albeit at "the least serious end of the spectrum". Bearing that matter in mind, I would hold that the claimants' success should be reflected by the recovery of a small proportion of their costs. I would fix that proportion at 25% and would accordingly allow the cross-appeal to that extent."
"[16] In my judgment, it is also no longer necessary for a party to have acted unreasonably or improperly before he can be required to pay the costs of the other party of a particular issue on which he (the first party) has failed. That is the substance of what the Master of the Rolls was there saying. That that must be so is shown partly by the earlier citation at pages 1522H-1523B but, more importantly, by the only other case to which, for my part, I would have thought it was necessary for this court to be referred, namely the case of Johnsey Estates (1990) Limited v Secretary of State for the Environment [2001] EWCA Civ 6535, judgment given on 11 April 2001. In that case Chadwick LJ, giving the judgment of the court with which the other members of the court agreed, set out the principles in paras 21 and 22 as follows:
"21. The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs – and, if so, what order – is a matter entrusted to the discretion of the trial judge; (iii) the starting point for the exercise of discretion is that costs should follow the event; nevertheless, (iv) the judge may make different orders for costs in relation to discrete issues – and, in particular, should consider doing so where a party has been successful on one issue but unsuccessful on another issue and, in that event, may make an order for costs against the party who has been generally successful in the litigation; and (v) the judge may deprive a party of costs on an issue on which he has been successful if satisfied that the party has acted unreasonably in relation to that issue; (vi) an appellate court should not interfere with the judge's exercise of discretion merely because it takes the view that it would have exercised that discretion differently.
22. The last of those principles requires an appellate court to exercise a degree of self restraint. It must recognise the advantage which the trial judge enjoys as a result of his feel for the case which he has tried. Indeed, as it seems to me, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge's exercise of his discretion is flawed. That is to say, that he has erred in principle, taken into account matters which should have been left out of account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse."
[17] It is thus a matter of ordinary common sense that if it is appropriate to consider costs on an issue basis at all, it may be appropriate, in a suitably exceptional case, to make an order which not only deprives a successful party of his costs of a particular issue but also an order which requires him to pay the otherwise unsuccessful party's costs of that issue, without it being necessary for the court to decide that allegations have been made improperly or unreasonably."
Interest on costs
Interim payment
Permission to appeal
Stay/extension of time