England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERICAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 March 2004

Lord Phillips, MR :

This is a judgment of the Court.

1. This is an appeal against an award of costs against the Fourth Defendant, Mr Egbe, made pursuant to a judgment delivered on 23 July 2003 by Mr Arthur Marriot QC, sitting as a Deputy High Court Judge in the Commercial Court. Permission to appeal was given by Clarke LJ on 12 September 2003. He remarked that it is a most unusual case. Indeed it is.
2. Mr Egbe was not party to the substantive proceedings. He was joined as a party pursuant to CPR 48,2(1)(a) because an order for costs was sought against him. Similar relief was sought against Chief Ofotokun, who was joined as the Fifth Defendant. The Deputy Judge made separate but identical orders against each that they should pay costs in the sum of £421,847.89.
3. All the Defendants, bar one, whether individual or corporate, are Nigerian. The First Defendant, Chief Idisi, owns the companies that are the Second and Third Defendants. In this judgment we shall refer to the Fourth and Fifth Defendants by name and use the phrase 'the Defendants' to describe the First Three Defendants. Most of the events material to the substantive action took place in Nigeria. The allegations made against Chief Idisi were of disgraceful conduct. He sought to pursue defences to the claims made against him that were held to be without merit. By doing so he caused the claimants to incur substantial costs. Summary judgment was given against him and his companies on 26 November 1999 for damages, which were subsequently assessed at over $4 million. A year later an order was made against him, in his absence, committing him to prison for deliberately flouting orders of the court that had been designed to assist enforcement in respect of the claims made against him. He appealed unsuccessfully against that order. Further substantial costs were incurred in relation to the contempt proceedings. It has not yet proved possible to recover the majority of the damages awarded against the Defendants, let alone the costs ordered against them.
4. Mr Egbe practises as a lawyer in Nigeria. The claim for costs advanced against him was founded on the allegation that he had not merely provided funding for the Defendants' legal expenses, without which they would have been unable to persist in defending the claim, but that he had personally intervened in the conduct of their defence. Mr Egbe came to England and conducted his own defence. He gave evidence in which he sought to demonstrate that he had had no significant involvement in the conduct of the defence and that he "never paid one penny by way of legal fees on behalf of any of the Defendants". The Deputy Judge rejected his evidence. He found that Mr Egbe had personally intervened to assist the Defendants and that he had provided, from his own resources, a substantial contribution to the substantial funding needed to comply with court orders and to meet the Defendants' legal expenses.
5. On this appeal Mr Egbe sought to introduce additional evidence to demonstrate that the judge's findings in relation to the funding that he had provided were not correct. Had that evidence been admitted, it would have called for a re-assessment of the role that Mr Egbe had played in relation to the provision of funds on behalf of the Defendants. On behalf of Gulf, Mr Berry QC objected to the admission of this evidence on the ground that, had Mr Egbe sought to obtain it before the hearing of the costs proceedings, there was no reason why he should not have done so. We upheld this objection and refused to allow the fresh evidence to be introduced. In these circumstances Mr Marten, who appeared for Mr Egbe, accepted that there was no basis upon which he could challenge the findings made by the Deputy Judge in relation to the financial support provided to the Defendants by Mr Egbe. Mr Marten's submissions have been that the findings made by the judge could not support the costs order that he made.

The claim against the Defendants

6. It is convenient to set the scene by giving brief details of the claim that was brought and established against Chief Idisi and his companies. In 1997 the Second Defendant, 'Lonestar' acquired two second-hand dismantled oil rigs. In June 1997 these were shipped aboard the First Claimant, 'Gulf's, vessel "Dubai Valour", for carriage from India to Nigeria. On 5^th July 1997 the vessel encountered heavy weather. Parts of the rigs and their accessories, which were being carried on deck, were washed overboard and lost. The vessel put into Port Elizabeth as a port of refuge, where the remaining cargo was re-secured. On her arrival in Nigeria the vessel was arrested pursuant to an Admiralty action commenced by Lonestar for loss of their cargo. Security for the release of the vessel was demanded in the sum of US $ 17 million. Gulf, and their insurers, the Second Claimants, declined to provide security in this amount.
7. Chief Idisi then forcibly seized the crew of the vessel and held them in appalling conditions. Some were detained for as long as 18 months. In the end the Claimants were constrained to enter into a "settlement agreement" under which, in consideration of the payment of $3 million, the vessel and her crew were released. On 23 April 1999 the Claimants commenced proceedings in the Commercial Court claiming damages and interest totalling over $7 million for the wrongful detention of the vessel. They further claimed the return of the $3 million paid to Chief Idisi, on the ground that this had been obtained by duress. In fact this sum never reached Chief Idisi. On 29 April 1999, the Claimants obtained a world wide Freezing Order and the sums caught by this included the $3 million.
8. On 3 August 1999 the Claimants obtained a default judgment against the Defendants for the return of the $3 million. The Defendants had, by no more than a few minutes, failed to file their Defence in time. On 26 November, after a hearing before Langley J that lasted 6 days, the Defendants failed in an attempt to set aside the default judgment and the Claimants recovered summary judgment on their claim for detention of the vessel, together with an award of costs. An interim payment of $2 million was ordered. Damages were subsequently assessed at over $ 4 million. We shall have more to say about the hearing before Langley J in due course.
9. The Defendants subsequently appealed to the Court of Appeal, but their appeal was dismissed on 12 March 2001. The Court of Appeal found that Chief Idisi had become aware by August 1997 that the maximum damages that he could hope to recover were $1 million. The Court held that there was no arguable defence to the Claimants' claim for unlawful detention of their vessel from August 1997 to May 1999.

Contempt of court

10. Chief Idisi committed flagrant breaches of the Freezing Order that had been made on 29April 1999. In particular (i) he withdrew from the jurisdiction the sum of $350,000; (ii) contrary to the order of the court he directed that periodic payments that were due from a company called Expro Gulf be made to an account in Nigeria in place of the account within the jurisdiction to which they would otherwise have been made. There were other breaches of the Freezing Order and further orders ancillary to it.
11. On 12 August David Steel J ordered, among other things, that the Defendants should return the $350,000 to an account within the jurisdiction by 8 September 19999 and that they should satisfy a costs order in the sum of £13,980, that had been made against them, by 10 September 1999. On 3 November Cresswell J extended the time for making these payments until close of business on Friday 5 November. He ordered that Chief Idisi and his accountant, Mr Ahonkhai, attend for cross-examination on Monday 8 November 1999. That day was the return date for an application by the Claimants to Langley J to debar the Defendants from pursuing an application to set aside the default judgment of $3 million and from resisting Gulf's application for summary judgment on their detention claim. The grounds of this application were the serious and deliberate breaches by the Defendants of orders of the court.

The hearing before Langley J

12. The Defendants had been represented by D J Freeman & Co from June to 6 September 1999. From the end of September 1999 Nabarro Nathanson ('Nabarros') represented them. They continued to do so until 15 February 2000. For a brief period there were no solicitors. In April, Nabarros came back shortly before being replaced by Speechly Bircham. On 27 September 1999 a meeting took place at the London chambers of Mr Bitu Bhalla, a member of the English Bar. Present were representatives of the Defendants, and Miss Margaret Egbe, Mr Egbe's niece, who was Head of Chambers of his firm. A letter from Lonestar to Mr Jonathan Rosshandler, then a partner in Nabarros, dated the 28 September, referred to this meeting and stated that the Defendants had determined to retain his firm.
13. On 4 November 1999 Mr Cohen of Nabarros wrote to Chief Idisi. He recorded receipt of £56,000 "via Fred Egbe", which had been disbursed. He sought further funding to enable his firm to continue representing the Defendants at the hearing that was due to commence before Langley J on 8 November. On Friday 5 November Mr Bhalla wrote to Langley J, informing him that because of lack of funds he would not be representing the Defendants at the hearing and that Nabarros might not be doing so either.
14. When the hearing opened on 8 November the Defendants were nonetheless represented by Mr Bhalla and by Nabarros. Chief Idisi was not present, however. Neither the $350,000 nor the £13,980 costs, ordered to be paid by David Steele J. by 5 November had been paid. It is not surprising that investigation of these matters was Langley J's foremost concern. In his judgment in the costs proceedings the Deputy Judge quoted at length from the transcript of the proceedings before Langley J on 8 November and subsequent days. Miss Egbe was in court, having flown from Lagos at the weekend, and much that was told to the judge by Mr Bhalla was stated, in her presence, to have been derived from information supplied by her.
15. In summary Langley J was told that Chief Idisi was in hospital, having been taken extremely ill on the Friday. Mr Egbe had agreed to transfer to within the jurisdiction from his own funds the sum of $350,000 to purge Chief Idisi's contempt. Mr Egbe had previously contributed to Chief Idisi's legal expenses out of sympathy for the Chief. The following day a question arose as to whether this sum was being provided by Mr Egbe from his own funds. Mr Bhalla said that he had confirmed that this was the case from Mr Egbe himself the previous evening. He then took instructions from Miss Egbe and re-confirmed that this was indeed the position. On 10 November Mr Cohen provided a witness statement which stated that Mr Egbe was personally providing the $350,000 and describing the manner in which the transfer was being made. On the same day, in a letter to Stephenson Harwood, Mr Rosshandler confirmed that "Mr Fred Egbe put our firm in funds when we began acting for the Defendant".
16. On 16 November Mr Bhalla told Langley J. that he was instructed by Mr Rosshandler that a cheque for the £13,980 costs that had been ordered to be paid had been provided on instructions from Mr Egbe. On 17 November, the last day of the hearing, the $350,000 was received. In the event Langley J dealt with the case on the merits, making the findings to which we have already referred.

Subsequent contempt proceedings

17. On 22 November 2000, on the application of the Claimants, contempt proceedings against Chief Idisi were brought before Moore-Bick J. The Chief was represented by Mr Bhalla, instructed by Speechly Bircham. He did not venture within the jurisdiction himself. The judge found that Chief Idisi had committed a number of serious breaches of orders of the court designed to provide security against the Claimants' claims. He made an order for Chief Idisi's committal. There was a subsequent appeal to the Court of Appeal against his committal. The appeal was dismissed.

The claim for costs before Deputy Judge Marriott

18. Before turning to the claim against Mr Egbe, we should say a word about the Fifth Defendant. Chief Ofotokun was found to have contributed to the Defendants' costs. He was also found, in the contempt proceedings, to have made a collusive claim against Chief Idisi in Nigeria. The object of this was to obtain an order of the Nigerian Court that all payments due to Chief Idisi should be paid into that jurisdiction. This was designed to provide Chief Idisi with an explanation for diverting the Expro Gulf payments to Nigeria, in breach of the order of the English court. The Deputy Judge made the same order against Chief Ofotokun that he made against Mr Egbe.

The claim against Mr Egbe

19. The Claimants sought an order that Mr Egbe should pay the majority of the unrecovered costs ordered for the period between June 1999 and 9 March 2001. The total claimed amounted to a total of £421.857.89, upon which interest was also claimed. The costs claimed included part of the preparation for and the hearing before Langley J, the appeal from his order, the major part of the costs of assessing damages, and the costs of the contempt proceedings and the appeal against the order of Moore-Bick J in those proceedings.
20. The basis of the claim was that Mr Egbe had maintained the action with no legitimate interest in supporting the litigation. He had funded the litigation and espoused and closely identified himself with the Defendants'. Mr Berry, who appeared for the Claimants before the Deputy Judge as he has before us, made it plain that he accepted that he had to establish that, but for Mr Egbe's support, the costs in question would not have been incurred. He submitted that, but for Mr Egbe's support in the period from June to November 1999, the Defendants would have been unable to persist in opposing the relief that the claimants were seeking and to which they were entitled. He argued that, but for Mr Egbe's support in this critical period, many of the subsequent costs would not have been incurred. As for the costs of the contempt proceedings, he argued that, although his judgment was not entirely clear on this matter, the Deputy Judge must have inferred that Mr Egbe was continuing to support Chief Idisi when these costs were incurred.

The Deputy Judge's findings.

21. Both Mr Egbe, who appeared in person, and his niece, Miss Egbe, gave evidence at the costs hearing. Their evidence was starkly at odds with the information that Mr Bhalla had, on instructions, given to Langley J. It was also at odds with evidence that had emanated from Nabarros. Mr Egbe's account of his role was summarised by the Deputy Judge as follows:-

"29. In his evidence at the hearing, Mr Egbe accepted that he had been involved in the conduct of the defence of the Idisi Defendants in three ways. Firstly, he had organised the provision of £56,000 by way of a foreign exchange swap for Chief Idisi and that sum had been transferred to Nabarro Nathanson in London probably in late September 1999 when Nabarro Nathanson were instructed in place of D J Freeman & Co. Mr Egbe said that part of the sum of £56,000 was used to discharge the order for costs against the Idisi Defendants in the sum of approximately £16,000. Secondly, he had organised a loan to Chief Idisi of $350,000 which had been transferred through Mr Egbe's account in Geneva into an account in London on 17^th November 1999. This Loan was to enable Chief Idisi to return to the jurisdiction the equivalent sum which he had caused to be abstracted in June 1999. Thirdly, Mr Egbe also said that he considered the conduct of Chief Idisi in Nigeria to be deplorable and he had urged Chief Idisi to have confidence in the English legal system, to participate in the action and not to flout the orders made by the English courts."

22. As to the assistance that had been provided to Chief Idisi by Miss Egbe, Mr Egbe insisted that she had been acting in her personal capacity and not on behalf of his firm or himself. He had taken very little interest and had no real knowledge of the litigation in England. Miss Egbe gave evidence to similar effect.
23. Both witnesses identified as the major source of the funding a Mr Schep, a Dutch businessman based in Europe, a long standing friend and partner of Mr Egbe, who had been prepared to lend at Mr Egbe's request first £56,000 and later $350,000. Mr Egbe, for his part, had been prepared to request this assistance for Chief Idisi, who was neither a friend nor a business associate, nor even an acquaintance of long standing, but a very rich and influential man who could be relied upon not to default on the loans.
24. The Deputy Judge did not believe this evidence. The following are his relevant findings:-

"110. I do not believe, that in conveying information to the Learned Judge in response to pointed questions from him, that Mr Bhalla either invented his answers or put forward answers which he knew to be untrue. I believe that Mr Bhalla acted in accordance with instructions he was given not only through Nabarro Nathanson, but directly on one occasion over the telephone from Mr Fred Egbe himself and in the courtroom from Miss Margaret Egbe. I have no doubt having considered all the evidence put to me and having had the advantage of seeing Mr Egbe in the witness box, that the sums of £56,000 and $350,000 were provided by Mr Egbe from his own resources and the Mr Schep was the conduit by which the funds could be transferred from outside Nigeria.

111. I also have no doubt that Mr Egbe and Miss Egbe were closely involved with the conduct of the Idisi Defendants' defence, not only in dealing with Nabarro Nathanson and in conveying messages to the Chief and no doubt his instructions to Nabarro Nathanson, but also in the critical events of the weekend of 6^th and 7^th of November 1999 on the eve of the hearing before Mr Justice Langley. Whether or not Miss Egbe took £50,000 in cash to London that weekend, it is plain that the intervention of Mr Egbe and his niece combined with the assurances from them that funds would be available, caused Mr Bhalla and Nabarro Nathanson to reserve their decision of Friday afternoon and decide to appear for the hearing on 8^th November 1999.

112. As I have said, that hearing lasted six days. The hearing was critical to Chief Idisi's position in the litigation. Miss Egbe made an intervention by making a powerful witness statement on Chief Idisi's behalf as to his medical condition and explaining the attempts being made to purge his contempt. Her statement was designed to persuade the court to allow the case to proceed; and without it and the assurances given to the Learned Judge that funds were coming from Mr Egbe, it is doubtful that the Learned Judge would have allowed the case to proceed.

113. I find it inconceivable that Miss Egbe could have participated in all the ways she did, without her uncle's express permission and encouragement to do so. It is not as though Mr Egbe was a passive observer. He actively participated both in the provision of funds and in assurances to Nabarro Nathanson that funds would be available to enable them to continue and in explaining to Mr Justice Langley via the witness statement of Mr Cohen and the attendance note, precisely what steps he had taken to ensure that the $350,000 reached Nabarro's account in London as soon as possible. Accordingly, given my findings as to Mr Egbe's role, I see no reason to doubt Chief Idisi's sworn statement that Mr Egbe was one of the three men of substance who assisted the Chief financially from June 1999 when he learnt of the sequestration, to February 2000.

114. I believe it to be more likely than not that Mr Egbe, a highly experienced and able lawyer, would also have given advice to Chief Idisi as to how the litigation in England should be conducted. I cannot accept his evidence that he knew little of the proceedings in London. Clearly, he understood the issues before the court on 8^th November 1999 and he must have realised, as it was obvious, that Chief Idisi's conduct in Nigeria in detaining the vessel and crew was plainly unlawful that the Chief had no defence to the detention or the demurrage claim and that any application to set aside the default judgment was bound to fail. There is no evidence on which I can judge whether Mr Egbe was paid or received some other benefit, other than the possible goodwill of Chief Idisi for the services he provided. However, I find it unlikely that without substantial benefit to himself he would have taken such trouble and time and exposed himself to the risk, however unlikely, that he might on his view have to repay Mr Schep if Chief Idisi defaulted"

25. After considering relevant authorities, the Deputy Judge proceeded to apply them to the facts that he had found. He held that, had Mr Egbe done no more than provide or arrange for the funding that had been provided, this would not have justified an order for costs against him. He summarised the conduct that justified the making of the order sought in the following passage, which formed paragraph 128 of his judgment:-

"But I have found on the evidence that Mr Egbe did more. I have found that he arranged for the representation of Chief Idisi by Nabarro Nathanson and Mr Balla; that he financed that representation from his own pocket; that he permitted and encouraged his niece, one of his employees, to be actively involved in the conduct of the litigation to the extent of coming to London over the critical weekend of the 6^th and 7^th November 1999 and in providing witness evidence in support of the Chief's application to set aside the summary judgment and to be allowed to bring evidence on his counterclaim; that he himself gave evidence by means of Mr Cohen's witness statement and attendance note; and, that he helped to implement the vital strategic and tactical steps necessary to assist Chief Idisi, certainly from the critical period in September 1999 through until Mr Justice Langley's judgment of 26^th November 1999."

26. The Deputy Judge does not seem to have held that a critical factor was his finding that Mr Egbe was aware that the defence was bound to fail. On the contrary he appears to have accepted that funding would not necessarily carry with it a liability to pay costs simply because the funder did not believe in the successful outcome of the case. He went on to advance the following proposition:-

"133. It may be that like Lord Justice Scrutton and the elephant, we cannot define it, but we know it when we see it; it may also be that, as I believe, guidelines can be formulated to reflect the principle that third party funding is an essential part of our civil justice system as it now stands, but the funder is exposed to a cost order where he has controlled or directed the conduct of the litigation, in a manner which has resulted in undue expense or hardship to the successful party."

27. Subsequently the Deputy Judge stated that what took Mr Egbe's case out of the category of a 'pure funder' was

"principally his personal participation in the conduct of the litigation at a critical time for Chief Idisi"

The grounds of appeal

28. The primary submission advanced by Mr Marten on behalf of Mr Egbe was that his role in relation to Chief Idisi's defence was not such as to justify any award against him in respect of costs at all. All that he did was to provide disinterested assistance. His position was comparable to one who provides funding with the aim of enabling a litigant to have access to justice and with no other motive for so doing.
29. Alternatively, Mr Marten submitted that Mr Egbe's liability should be limited to the costs that were incurred during the period that he was actually assisting Chief Idisi in his defence. These were the only costs that could be said to have been incurred as a result of Mr Egbe's assistance. His assistance ceased on 15 February 2000, when Nabarros came off the record. The costs incurred up to that stage amounted to a total of £145,325.50. This was the maximum sum that could properly be awarded against him.
30. Mr Marten further submitted that credit should be given to Mr Egbe for paying, or procuring the payment of liabilities already incurred by Chief Idisi when Mr Egbe came on the scene. These consisted first of all of the $350,000. Mr Egbe should be given credit for ensuring that Chief Idisi purged his contempt, not penalised for this. Mr Egbe should also have credit for discharging, or procuring the discharge of, Chief Idisi's cost liabilities in the sums of £16,966.66 and £13,980.

Gulf's submissions

31. Mr Berry submitted that, so far as liability was concerned, the issue was whether the facts were capable of justifying the manner in which the Deputy Judge had exercised his discretion. The material facts were those set out in paragraph 128 of the judgment, which we have quoted at paragraph 25 above. Those facts, when taken as a whole, provided abundant justification for the Deputy Judge's order. Not merely had Mr Egbe financed Chief Idisi's defence at the critical period, but he and his niece had, espoused, identified intensely with and intermeddled with Chief Idisi's cause by giving evidence in his favour and liasing with and instructing his solicitors. It was Mr Egbe's intervention, and his provision of finance, that enabled Chief Idisi to continue with his defence in November 1999, when otherwise he would not have been permitted to play any further part in the proceedings. Mr Egbe was directly responsible for most of the costs that were incurred after that date. It was a proper exercise of the Deputy Judge's discretion to award those costs against Mr Egbe.

The law

32. Section 51(1) of the Supreme Court Act 1981 provides:-

"Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trust, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid."

33. In Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 695 the House of Lords recognised that this provision conferred jurisdiction on the Court to make an award of costs against someone who was not a party to the litigation. In the leading speech Lord Goff of Chievely described this as a 'broad jurisdiction'. He observed at p. 980:-

"In the vast majority of cases, it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of the present case show, that is not always so."

He went on to say that courts of first instance, with appropriate guidance from the Court of Appeal, would be well capable of exercising their discretion under the statute in accordance with reason and justice.

34. In Symphony Group Plc v Hodgson [1994] QB 179, a case of totally different facts from the present, the Court of Appeal formulated a number of general principles, by way of guidance. The first was that an order for the payment of costs by a non-party would always be exceptional. That principle has never been doubted. Another principle was that an application for the payment of costs by a non-party should normally be determined by the trial judge. In the present case a costs order was sought against Mr Egbe in respect of proceedings before a number of different judges. The critical proceedings were, however, those before Langley J in November 1999. We think it unfortunate that the costs proceedings were heard, not by Langley J, or even one of the other judges of the Commercial Court who had been involved with the litigation in question, but by a Deputy Judge who had had no previous connection with the proceedings.
35. The approach to making an award of costs against a non-party has had to accommodate the change in public policy which has recognised that access to justice can properly be procured by giving those who provide legal services an interest in the outcome of the litigation. The implications of this change of policy were considered by the Court of Appeal in Hamilton v Al Fayed (No 2)[2002] EWCA Civ 665; [2003] QB 1175. In that case Mr Fayed sought, without success, costs orders against non-parties, who had funded Mr Hamilton in his unsuccessful defence against Mr Fayed's claim for defamation. At paragraph 47 Simon Brown LJ expressed the following view:-

"… the pure funding of litigation (whether of claims or defences) ought generally to be regarded as being in the public interest providing only and always that its essential motivation is to enable the party funded to litigate what the funders perceived to be a genuine case."

36. Chadwick LJ agreed. He held at paragraph 70:-

"For my part I can see no difference in principle, in the context of facilitating access to justice, between the lawyer who provides his services pro bono or under a conditional fee arrangement, the expert (say an accountant, a valuer or a medical practitioner) who provides his services on a no-win/no-fee basis, and the supporter who - having no skill which he can offer in kind - provides support in the form of funding to meet the fees of those who have. In each case the provision of support – whether in kind or in cash – facilitates access to justice by enabling the impecunious claimant to meet the defendant on an equal footing. "

37. Hale LJ at paragraph 85 considered whether it would be appropriate to make costs orders against those who fund litigation that does not have a reasonable prospect of success. Her conclusions were as follows:-

"85. It might be more practicable to distinguish on the basis of whether the party funded had a reasonable prospect of success in the litigation. But experience with legal aid has shown that this is difficult to predict in advance, particularly where the outcome depends upon credibility or the impression made in the witness box. Lawyers give advice on the basis that what their client tells them is honest and accurate (although they should draw attention to the difficulties which a court may have in accepting the evidence). It is unreasonable to expect funders to be any more sceptical. In practice, there has to be a general approach, whether for or against making such orders, even if there may sometimes be exceptions.

86. On balance, the arguments in favour of a general approach that "pure" funders should not be expected also to fund the opposing party's costs outweigh the arguments in favour of a general approach that they should. There must, however, be exceptional cases where it would be quite unjust not to make an order: principally where the litigation was oppressive or malicious or pursued for some other ulterior motive. The fact that it was quite unmeritorious would be powerful evidence of ulterior motive but neither a necessary nor a sufficient criterion in itself. "

Discussion

38. We have described the conduct of Chief Idisi, which amounted in effect to holding Gulf's crew to ransom, as disgraceful. The same epithet could be applied to his attitude to the litigation with which we are concerned, when taken as a whole. He has displayed a contemptuous disregard for the orders of the Court. It would perhaps have been understandable if the Deputy Judge had approached his decision on costs on the premise that Mr Egbe was tarred with the same brush. On his finding Mr Egbe and his niece had, when giving evidence, attempted to mislead him as to the basis upon which Mr Egbe had procured financial assistance for Chief Idisi. The Deputy Judge did not, however, hold that against Mr Egbe when considering whether he should make the costs order sought by Gulf, and he was right not to do so. What was in issue was Mr Egbe's behaviour at the time that the costs in question were incurred, not at the subsequent costs hearing.
39. Equally, the Deputy Judge did not advert, as a reason for his order, to his finding that Mr Egbe must have realised that Chief Idisi had no defence to the detention and demurrage claim and that any application to set aside the default judgment was bound to fail. Nor, in his written or oral submissions, did Mr Berry submit that this was a critical factor, albeit that when we asked him about the finding he sought to support it.
40. We were nonetheless concerned by this finding on the part of the Deputy Judge. Mr Marten submitted that it was not justified on the evidence. Mr Berry referred us to passages in the transcript of Mr Egbe's cross-examination that he submitted supported the Deputy Judge's finding. It did not seem to us that they did so. While Mr Egbe had readily accepted that the detention of the crew by Chief Idisi had been objectionable, he strongly challenged the suggestion that he had been aware that there was no defence to the Claimant's claim. In particular he made the point that, whatever might be the position with regard to liability, he understood that there were issues of quantum to be resolved.
41. If Chief Idisi or Mr Egbe believed that the defence was hopeless, it is hard to see why such strenuous efforts were made to persuade Langley J to consider the merits, involving as this did bringing into the jurisdiction substantial sums. Furthermore, on 4 November, Mr Cohen faxed to Chief Idisi a letter which ended with the statement that it was the joint belief of Mr Cohen and Mr Bhalla that "the merits of your position in respect of the underlying case is strong and winnable".
42. In these circumstances, it seems to us that it was appropriate to approach the case, as each side did, on the basis that the critical question was whether the Deputy Judge's findings in paragraph 128 of his judgment justified the costs order that he made.
43. What were the "vital strategic and tactical steps necessary to assist Chief Idisi from the critical period in September 1999 through until Mr Justice Langley's Judgment of 26 November 1999"? It seems to us that they were the steps itemised by the Deputy Judge in the earlier part of paragraph 128:

i) Arranging for Chief Idisi to be represented by Nabarros;

ii) Financing Nabarros' representation from his own pocket;

iii) Permitting and encouraging his niece to come to London over the critical week-end of 6-7 November;

iv) Permitting and encouraging his niece to provide evidence as a witness;

v) Providing evidence himself by means of Mr Cohen's witness statement and attendance note.

We propose to consider each of these actions in turn.

44. We cannot see that any criticism can be attached to instructing solicitors of high standing to represent Chief Idisi. It was in the interests of justice that he should be represented by officers of the court who would leave him in no doubt of his duty to comply with the orders of the court and who would not knowingly be party to any attempt to deceive the court.
45. So far as the provision of funds is concerned, the judge himself held, in paragraph 127 of his judgment:-

"On any view, the provision of funds to enable payments to be made to the Claimants in the action, cannot conceivably be conduct which would merit the application of a costs sanction. It is the very antithesis of the circumstances contemplated by cost orders against third parties."

We would endorse the judge's comment. The court had subjected Chief Idisi's assets to a world wide freezing order, but at the same time ordered him to bring into the jurisdiction $350,000 and monies to discharge his costs liabilities. It is hard to see how any criticism could be made of third parties who assisted Chief Idisi to comply with the latter part of these requirements.

46. The reason why Miss Egbe came to England in the critical week-end of 6-7 November was, so it seems to us, to liase with Nigeria and to assist in persuading the court that Chief Idisi was doing his best to comply with the orders of the court. Once again we find it hard to see how Mr Egbe can be criticised for permitting and encouraging this.
47. Miss Egbe's witness statement was prepared on Sunday 7 November. It dealt with two matters. First it dealt with the efforts that were being made to provide the funding needed to enable Chief Idisi to comply with the court orders. As to this, she stated:-

"20. The effect of the very draconian Orders that have been made in this action has meant that it has been virtually impossible for Chief Idisi to conduct his business; and it is inconceivable that either Chief Idisi or Lonestar Drilling Nigeria Limited could, themselves, have ready access to funds to the tune of US$350,000 which could be remitted to the UK. (It will be remembered that Citizens Bank had declined to advance funds once the Freezing Order was served.)

21. I understand from discussion which I had with Fred Egbe that Chief Idisi's brother had asked him to assist in providing funds to enable Chief Idisi to purge his contempt. Fred Egbe had agreed to make arrangements to provide the funds (which would be lent to Chief Idisi by various third parties). However, there was considerable uncertainty as to whether these funds could be remitted to the UK in time for the hearing on Monday 8 November 1999, and this problem has been greatly exacerbated by the unfortunate severe deterioration in Chief Idisi's health."

48. This evidence fell short of stating that the $350,000 had been obtained, but indicated that it would be lent by various third parties. On the following day Mr Bhalla told Langley J, on instructions from Nabarros, that Mr Egbe was himself providing these funds. He confirmed this on the Tuesday, having spoken on the telephone to Mr Egbe himself. The Deputy Judge proceeded on the basis that what Langley J was told was the true position, and so must we. It does not seem to us that this leads to the conclusion that Miss Egbe's statement that the funds would be lent by various third parties was an attempt to mislead the court. A natural reading of the situation is that events had moved on by Monday morning and that Mr Egbe had been prevailed on to put up the funding himself.
49. The other matter that Miss Egbe dealt with in her witness statement was Chief Idisi's state of health. The information that she provided was said to be based upon what she had been told by Chief Idisi's wife, including information given over the telephone from Chief Idisi's bedside in hospital on Sunday 7 November to Miss Egbe when she was in conference with Mr Bhalla and Nabarros. That information was that Chief Idisi had been taken gravely ill, and was unconscious in hospital. It was not suggested to us that the information given by Miss Egbe in her witness statement was untrue. In short there was nothing in Miss Egbe's witness statement that was demonstrated to reflect adversely upon her or upon Mr Egbe.
50. Mr Cohen's witness statement and attendance note recorded a telephone conversation that he had had with Mr Egbe on the morning of 10 November 1999. Mr Egbe had informed Mr Cohen that he had instructed his bank in Switzerland to transfer $350,000 from the account in the name of "Victoria Island Properties Ltd, a company wholly owned by Mr Egbe, to Nabarros. The Deputy Judge proceeded on the basis that the information given by Mr Egbe about the ownership of the $350,000 was true and so must we. On that basis we cannot see that the information provided by Mr Egbe to Langley J via Mr Cohen added anything to his act of procuring the payment of the $350,000.
51. Mr Berry conceded that it was hard to single out any one of the actions on the part of Mr Egbe, itemised in paragraph 128 of the judgment, that justified the Deputy Judge's costs order, but submitted that when taken as a whole his actions did so. We do not agree. The period between the 6^th and the 17^th November 1999 was indeed critical. Chief Idisi was within a hair's breadth of being precluded from being heard on the merits as a result of failure to make or procure the payments ordered by the court. He was also likely to be left without legal representation if his lawyers were not put in funds. But for the intervention of Mr Egbe, in the manner found by the Deputy Judge, Chief Idisi's case would have gone by default. But by far the most significant act performed by Mr Egbe was the provision of the necessary funds. Everything else that he did was merely ancillary to that. It was conduct designed to reassure the court that the funds were being provided. The judge described the provision of funds in these circumstances as "the very antithesis of the circumstances contemplated by costs orders against third parties". We can see no logical basis for finding that the actions taken by Mr Egbe, designed to ensure that the provision of funds had the desired consequence of enabling Chief Idisi's case to be heard, so transformed the nature of Mr Egbe's involvement as to justify an order that he should pay the costs of the proceedings.
52. Had the Deputy Judge found that Mr Egbe had colluded with Chief Idisi, by use of fair means and foul, to play fast and loose with the court, an order for costs against Mr Egbe might have been justified. No such case was made out before the Deputy Judge, nor advanced before us. Mr Egbe intervened at a critical stage of the proceedings, but the nature of his intervention was not such as to justify an order that he should bear the costs of the proceedings.
53. The judge was prepared to infer that Mr Egbe could expect to derive 'substantial benefit' as a result of the assistance that he had provided. This inference did not feature in the reasons given for awarding costs against him that were summarised in paragraph 128. Insofar as the inference was justified the expected benefit would seem to be no more than reward for the service rendered in procuring the vital funding at the critical moment. There is no suggestion that Mr Egbe had any personal interest in the outcome of the litigation, or that his intervention gave him any such interest. In this respect his position contrasts with that of those who provide legal services on a conditional fee basis, yet even they do not expose themselves to risk of being ordered to pay the costs of proceedings that they support in this way.
54. Mr Marten submitted that Mr Egbe's role, insofar as it went beyond that of a 'pure funder' was that of a 'pure assister'. We are not sure that the adjective 'pure' assists in the analysis. It is, we believe, designed to draw a distinction between those who assist a litigant without ulterior motive and those who do so because they have a personal interest in the outcome of the litigation. Public policy now recognises that it is desirable, in order to facilitate access to justice, that third parties should provide assistance designed to ensure that those who are involved in litigation have the benefit of legal representation. Intervention to this end will not normally render the intervener liable to pay costs. If the intervener has agreed, or anticipates, some reward for his intervention, this will not necessarily expose him to liability for costs. Whether it does will depend upon what is just, having regard to the facts of the individual case. If the intervention is in bad faith, or for some ulterior motive, then the intervener will be at risk in relation to costs occasioned as a consequence of his intervention.
55. In the present case, the role of Mr Egbe was particularly significant in that it enabled Chief Idisi sufficiently to purge his contempt to be permitted to contest the litigation. We agree with Mr Marten, and indeed the Deputy Judge, that this factor was not one that justified an order for costs against Mr Egbe. For all these reasons we have reached the conclusion that there was no justification for the exceptional costs order made by the Deputy Judge.
56. This makes it unnecessary to resolve the issue of causation. We will comment on it briefly. The judge dealt with this issue in the following short passage in paragraph 139 of his judgment:-

"139. I have considered carefully the analysis made by Mr Ghirardani as to the costs and the periods within which they were incurred. Given the evidence of Chief Idisi as to the period of time within which the three men of substance funded his defence, I find no fault with his analysis. It would, I think, be arbitrary and unreal in this case to attempt either to allocate responsibility based on relative financial contributions or, on conduct over different periods of time in the case of each defendant. Therefore I am prepared to make an order against Mr Egbe, that he pay the sum of £421,857.89 and against Chief Ofotokun in the same amount."

57. The reference to the evidence of Chief Idisi was to information supplied to the court by Chief Idisi in October 2000. This was that Mr Egbe, Chief Ofotokun and one Moses Emekeme had been the source of funding until 15 February 2000. The Deputy Judge found at paragraph 121:-

"In the instant case there is no doubt that Chief Idisi was funded from June 1999 to February 2000 and, as I have held, by the Fourth and Fifth Defendants."

58. Mr Ghirardani submitted that the court would be justified in inferring, in the absence of evidence to the contrary, that Mr Egbe provided funding for Chief Idisi in the period after 15 February. Paragraph 139 of the judgment does not suggest to us that the Deputy Judge accepted this submission, nor do we consider that the suggested inference was a natural one. It is hard to see why Chief Idisi should have wished to conceal the extent of Mr Egbe's funding.
59. Mr Ghirardani's alternative submission was that almost all the costs incurred after 15 February 2000 could be traced back to the filing of the Defendants' application for permission to appeal the order of Langley J in January 2000, at a time when Mr Egbe was still funding the Defendants' legal costs. The judge appears to have accepted the analysis of Mr Ghirardani. We consider that he should have subjected it to a more detailed scrutiny. It is very questionable whether it was right to identify the filing of an application for permission to appeal as being the critical causative event in relation to the appellate proceedings that followed. So far as concerns the considerable costs of the contempt proceedings and the assessment of damages, we cannot see how the application for permission to appeal against Langley J's order had any impact on these. Thus, had we rejected the appeal on liability, we would significantly have reduced the costs in respect of which Mr Egbe was liable.
60. As it is, for the reasons that we have given, this appeal will be allowed.