England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1178.html
Cite as: [2009] EWCA Civ 1178

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		Neutral Citation Number: [2009] EWCA Civ 1178
		Case No: A3/2008/2788

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MERCANTILE COURT
(HIS HONOUR JUDGE SIMON BROWN QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

14th October 2009

B e f o r e :

LORD JUSTICE WALLER
and
LORD JUSTICE WALL
____________________

Between:

	PABLO STAR LIMITED	Appellant
	- and -
	EMIRATES INTEGRATED TELECOMMUNICATIONS	Respondent

____________________

(DAR Transcript of
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____________________

Mr Haydn Price appeared on behalf of the Appellant.
Mr David Holloway (instructed by Clyde & Co Solicitors) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Waller:

We must now deal with the various issues that arise following the handing down of the judgment in this case. As the judgment indicates, it is not a happy situation at all and it is most unfortunate that the respondents have taken the sort of points that they had on jurisdiction as indicated in the judgment, but the time has come now when one should endeavour to see whether a sensible arrangement can be reached between Pablo Star and Emirates. It is not going to be conducive to a successful mediation to start making fierce procedural orders against the respondents.

That said, there are certain matters which it seems we can deal with. The first is the costs. What Pablo Star seek is an assessment now of costs of the appeal and the costs of the hearing below. Pablo Star through Mr Haydn Price also seek an assessment of costs of certain other hearings that took place. Mr Holloway for Emirates accepts that an order should be made for the costs here, and indeed he does not challenge that we can make an assessment. He does, however, challenge the making of assessments either of the Mercantile Court hearing on 28 October or the other two hearings.

It seems to me that we should not get involved in attempting to assess the costs of the hearing in June 2008 or 2 April 2008, but there is no reason why a) we should not assess the costs of the appeal, and no reason why b) having reversed the judgment, the judge's costs order now having to be re-examined, we should not assess the costs of the Mercantile Court hearing of 28 October 2008.

We have looked at the schedules. Mr Haydn Price has set out what work he has done, and he has limited his claim to the litigant in person rate, and the figures that come out on his schedule indicate £1,608.90 for preparing for the appeal hearing of 26 August, the £600 already awarded for the security for costs application, then £2,240.63 for the permission to appeal application, and we see no reason not to award those sums for those hearings. So far as the hearing below is concerned, he has assessed that at £3,773.72 and we see no reason not to award those costs for that hearing.

So the order is that the costs here and below will be paid by the respondents, and they will be assessed in those figures that I have identified.

The next question is whether permission to amend should be given, which Mr Price on behalf of Pablo Star is seeking. What in essence he is suggesting is that he put a £50,000 cap on the claim because it was in the County Court and now wants to extend that claim because the matter is in the High Court. But we have not got before us any pleading of an amendment and it would not be right in any event thus for us to deal with that.

What is suggested by Mr Holloway is that in fact the right course is to stay the proceedings for the present so that further costs are not incurred so that the matter can be mediated. Mr Price of Pablo Star is enthusiastic to have the claim mediated. The difference between Mr Holloway and Mr Price relates to how that should be organised. Both would suggest a stay for a period of time but Mr Price would seek to impose on Emirates a timetable in relation to delivery of their defence etc, and he would, I think, wish to amend his claim in the meanwhile, and not, as it were, have that the subject of a stay. Mr Holloway, however, does accept that any proposed amendment could be the subject of any mediation. In other words, as I understand his position on behalf of Emirates, it will not be said technically you have not yet got permission to amend, and the draft can be considered as Pablo Star's claim.

All in all, it seems to me that one should try and stop costs being expended in this litigation until mediation has taken place. Thus I would be in favour of granting a stay for a limited period. It seems that Mr Holloway himself is unavailable for a considerable period and it seems to me that it is important that he is involved in setting up any mediation, and thus I would be in favour of granting a stay for six weeks.

There are two other matters to deal with. Before the handing down of this judgment, it looked as though the Emirates were going to reserve to themselves the right to take a point on service as to whether the service was in accordance with the local law, but during this hearing it has become apparent that in fact that further personal service has in any event taken place, and thus there is no point to be taken on service under local law and thus there is not need to deal with that aspect. The appropriate order to make is thus: that the respondent should have until 27 October to file its acknowledgement of service in these proceedings pursuant to CPR 11(7), and it would seem to me that that should be done despite the stay. The sensible course is to get that acknowledgment in.

The final point to deal with is the question of permission to appeal to the House of Lords or the Supreme Court as it now is. The normal position of this court was that we did not impose a case on the House of Lords; we left it to them. The same goes for the Supreme Court –it is normally for the Supreme Court to decide whether it is a case it wishes to take. This case is no different from the norm and any points that are sought to be taken should be taken there.

Thus the form of order, I think, can now be as per Mr Holloway's draft, save that we can fill in the sums for costs of the appeal and costs below, assessed at [then one can insert the sum which will be from the figures that we have] and additionally the costs of the hearing before Rix LJ. Proceedings should be stayed for six weeks in order for the parties to attempt to resolve the dispute by mediation.

Lord Justice Wall:

I agree.

Order: Application for stay granted