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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Crane)

		Royal Courts of Justice Strand London WC2 Tuesday 6th February, 2001

1. LORD JUSTICE ROBERT WALKER: This is an application under subrules 12, 13 and 15 of Rule 25 of the Civil Procedure Rules for security for costs of an appeal.
2. The appellant is Mr Johan Hertzog. He appears to be resident in Miami Beach, Florida and he has not taken any action (by way of witness statement or otherwise) to dispute that he is ordinarily resident outside the jurisdiction, and is not a person against whom a claim can be enforced under either the Brussels Convention or the Lugano Convention.
3. Mr Hertzog has obtained permission to appeal from an order of Crane J, made after a long, interrupted and contentious hearing, refusing to set aside a default judgment for a sum which (with accrued interest) amounts to over £30 million. Mr Hertzog also wishes to appeal on other matters on which the judge refused permission to appeal. Those other matters include a finding of contempt of court on which the judge did not however make a committal order. Because of the uncertainty as to what grounds of appeal may eventually be permitted if the appeal proceeds, the time estimate for the hearing is four days; it would have been only half a day on the single ground so far permitted.
4. The estimated costs of the appeal, according to a draft bill exhibited to a witness statement made on 20th November 2000 by the respondent's solicitor, Mr Anthony Feldman, are a little over £108,000, including leading counsel's brief fee of £45,000 and further hearing fees of £9,000, and corresponding fees of £20,000 and £7,500 for junior counsel. Almost £10,000 is provided for the detailed assessment of costs. The only fee-earner shown is Mr Feldman himself, with his time charged at £300 an hour.
5. This is a proper case in which to order security for costs, but the amount applied for of £110,000 appears to me excessive, even having regard to the sums at stake in the litigation and the difficulty of the points raised. Moreover, I think that the sum applied for would be excessive even if (as may be unlikely) the appeal hearing were to occupy four days.
6. I have to deal with the matter in a summary way, and I think that the right order to make is for security for costs in the sum of £50,000. I will order security in the sum of £50,000 in 28 days with the appeal being stayed in the meantime. If the security is not provided the appeal will be dismissed automatically without further order. If security for costs is provided within 28 days, the respondent's skeleton argument (which has, for good reasons, been delayed) should be put in 28 days after provision of the security for costs and the appellant will have liberty to put in a skeleton argument in reply, if advised, 21 days from receipt of the respondent's skeleton argument.
7. I am asked to assess summarily the costs of this application, which I award to the applicant.
ORDER: Application for security for costs granted; security ordered in the sum of £50,000 to be paid within 28 days; appeal to be stayed in the meantime; appeal dismissed automatically if security is not provided within 28 days; if security for costs is provided within 28 days, the respondent's skeleton argument to be put in 28 days after provision of security for costs and the appellant to have liberty to put in a skeleton argument in reply 21 days from receipt of the respondent's skeleton argument; appellant to pay the respondent's costs assessed in the sum of £2,500 within 14 days. (Order not part of approved judgment)