England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Bowsher QC)

		Royal Courts of Justice Strand London WC2 Monday, 18th June 2001

Monday, 18th June 2001

1. LORD JUSTICE KAY: I will ask Keene LJ to give the first judgment.
2. LORD JUSTICE KEENE: This court will be slow to interfere with a judge's exercise of his discretion on costs, even where it is concerned with an award of costs against a non party under section 51 of the Supreme Court Act 1981. However, in this case I say at once that my own view is that this appeal is reasonably arguable.
3. Defending the action (in respect of the assessment of damages) brought by Pegler Ltd did, in the event, have the effect of reducing the claim from one of nearly £23 million to a figure of £9 million, which was actually awarded at the end of the trial, and the legal advice which had been received before hand by Wang (UK) Ltd suggested an even lower figure than that £9 million. It is, it seems to me, properly arguable that enabling Wang (UK) to resist the claim was done for the benefit of that company and its creditors and might have had some prospect of keeping Wang (UK) in existence. With hindsight, as it turned out, the amount owed to the Wang Group of companies as creditors was increased by reason of the loans made by Wang Global, the present applicant, but the increase in that indebtedness was less than the reduction in the amount claimed by Pegler. I can see that it is possible to contend successfully that Wang Global, in making the loans to Wang (UK), was acting properly in the interests of Wang (UK) and its creditors, rather than simply seeking to secure a benefit for itself. That, as has been made clear in the case of Stocznia Gdanska SA v Latreefers, which is a decision of the Court of Appeal dated 9th February 2000, is a relevant consideration when a court is exercising its undoubted discretion to award costs against a non-party under section 51.
4. Although the award by the judge was a matter for his discretion, in my view it is arguable, and properly so, that that discretion was not exercised, as it should have been in accordance with the legal principles applicable in such a case, in the present matter. Although that seems to me to be the best ground on which an appeal has a reasonable prospect of success in this case, I myself would not limit the grounds to be advanced. I would grant permission to appeal.
5. LORD JUSTICE KAY: I agree.
Order:Application allowed. Costs to be costs in the appeal. (Order does not form part of approved judgment)