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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dardana Ltd v Yukos Oil Company [2002] EWCA Civ 584 (18 April 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/584.html
Cite as: [2002] EWCA Civ 584
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(His Honour Judge Chambers QC
(sitting as a Deputy High Court Judge))
Strand London WC2 Thursday 18th April, 2002 |
||
B e f o r e :
LORD JUSTICE MANCE
MR JUSTICE NEUBERGER
____________________
| DARDANA LIMITED | ||
| Claimant/Respondent | ||
| - v - | ||
| YUKOS OIL COMPANY | ||
| Defendant/Appellant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR A de GARR ROBINSON (Instructed by Messrs CMS Cameron McKenna) appeared on behalf of the Respondent
____________________
Crown Copyright ©
- LORD JUSTICE MANCE: The matter of costs has now been argued, and helpfully so. It has been submitted that a distinction should be drawn between the position here and below, and also that distinctions should be drawn between the various issues which were argued. Obviously - and authority is not necessary, although Mr de Garr Robinson referred us to the case of Summit - split orders are orders which the court should, in appropriate circumstances, contemplate and will be more ready to contemplate than previously.
- Nonetheless, having looked at the matter overall, I have come to the conclusion that this is not a case for a split order. On the contrary, the most sensible course, although there are certain distinctions between the position here and below, is to view both instances together and to make one single order, subject to any appropriate discount to take account of lack of success or point which were raised which were unnecessary.
- Dardana were in fact seeking enforcement throughout. That was their initial aim. That remained throughout their primary aim. An application for security in the event of an adjournment came in only as a secondary matter. Neither aim has been achieved. The judge concluded that enforcement was inappropriate. There should be a stay. He thought that security was however appropriate. In the light of the judgment in this court, he was wrong on that. He should have concluded that neither aim was achieved. Viewing the matter on that basis, it seems to me that he would have been bound to arrive at a different conclusion as to the appropriate order for costs. In fact he thought it right to reserve any order for costs until after the outcome of the Swedish proceedings to set aside
- It seems to me that, had he concluded that neither aim was achieved and that the English proceedings effectively had achieved nothing, then he would have been bound to look at the matter differently. It is for us to re-exercise the discretion in respect of costs below on that basis.
- As I have indicated, Yukos below were throughout facing an application for enforcement. It seems to me understandable that that they should respond, by resisting enforcement and seeking themselves the setting aside of the provisional order for enforcement which had been made, on the basis that there was no written arbitration agreement. That was the position effectively throughout the whole of the hearing below. Only right at the end might it be said that that response was no longer appropriate and they should have simply accepted an adjournment. But by then it seems to me that the costs were already incurred. So looking at the matter below I would say that Yukos had much the better of the day.
- On appeal of course, faced as they were by what we have held to be a wrong order as regards security, Yukos may be said to have had less excuse to pursue their application to have the provisional order for enforcement set aside on the basis of a finding that was no written arbitration agreement. Likewise, they had less basis for arguing their legal points on the relationship between sections 100 and 103. However, it is right to say that those points really took up before us virtually no time at all. Certainly, the suggestion that there should be no adjournment was one that took absolutely minimal time. The interrelationship of section 100 and section 103 took little time.
- Then of course it is said that Yukos was wrong to investigate or reopen the merits with a view to seeking an order setting aside. As I say, the merits were not really pursued in this context. They were more pursued in the context of security. It is right that at the end of the day we have arrived at an assessment consistent with the judge's below. However, it seems to me that, especially having written the principal judgment, that the major time taken on that issue was in fact taken studying the papers out of court rather than in court. But be that as it may, it seems to me that some understanding of the detail of the merits was important. It would have been difficult simply to adopt and apply the judge's assessment, in the context of security, without a better feel as to the overall position. The judge dealt with it quite shortly.
- So I would not myself feel that Yukos should be penalised for the arguments raised on the merits.
- The upshot is that it may be said that Yukos did raise certain points on appeal for which there was less justification than there was below, but it raised them far more shortly. I think that justice would be done in this case by taking an overall view, and by treating all the costs here and below as one unit. The award in my judgment should be in favour of Yukos for costs, subject to deduction of an appropriate percentage to reflect the points on which they did not succeed.
- In my judgment an appropriate award in their favour would be an award of 75 per cent of their costs, to be assessed if not agreed, across the board at both instances.
- MR JUSTICE NEUBERGER: I agree.
- LORD JUSTICE THORPE: I also agree.