Case No: A3/2010/2580 & A3/2010/2580A
Neutral Citation Number: [2011] EWCA Civ 64
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, COMMERCIAL COURT
MR JUSTICE STEEL
[2010] EWHC 2640
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/02/2011
Before :

PRESIDENT OF THE QUEEN’S BENCH DIVISION
LADY JUSTICE SMITH
and
LORD JUSTICE AIKENS
- - - - - - - - - - - - - - - - - - - - -
Between :

	(1) CONSOLIDATED CONTRACTORS INTERNATIONAL COMPANY SAL
(2) CONSOLIDATED CONTRACTORS (OIL AND GAS) COMPANY SAL
	Judgment Debtors/ Appellants/Applicants	
	- and –
		
	MUNIB MASRI	Judgment Creditor/ Respondent  	
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr James Lewis QC and Mr Ben Brandon (instructed by SC Andrew LLP, London) for the Appellants
Mr Simon Salzedo (instructed by Simmons & Simmons, Solicitors, London) for the Respondent 
Hearing date : 12 January 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Aikens : 
1.	This is the judgment of the court.  It deals with consequential issues of costs, following the judgment of this court ([2011] EWCA Civ 21) which was handed down on 21 January 2011.    We will adopt the same abbreviations that were used in the previous judgment.
2.	The effect of the judgment was that this court allowed the appeal of the companies on only one aspect of the order of David Steel J dated 21 October 2010.   That issue was whether Mr Masri should identify to the companies the person (and the firm for whom he worked) who provided Mr Andrew Bartlett of Mr Masri’s instructing solicitors with information set out in his first affidavit at paragraph 11.   On all the other issues we either dismissed the appeal or refused to grant permission to appeal.
3.	On the question of the costs, the position of the parties can be summarised as follows: for Mr Masri, Mr Salzedo submits that the companies should pay 80% of Masri's costs of the appeal and 20% of the costs of the appeal should be costs in the application to exclude evidence or in the contempt application and those costs should include those of the (slightly) late Outline Argument dated 7 January 2011.   He submits that those costs should be summarily assessed.     The total in the Schedule of Costs is £25,769.  Mr Salzedo submits that the costs order made by David Steel J below should remain as it is.   Lastly he submits that Mr Masri should be permitted to take the £140,000 that Rix LJ ordered into court (as a condition of granting limited permission to appeal) in settlement of the costs of the appeal and below and also in satisfaction of any outstanding costs in the proceedings as a whole.
4.	For the companies, Mr Brandon submits that there should be no order as to costs on the appeal.   If, contrary to this submission,  any such costs are awarded to Mr Masri they should be the subject of a detailed assessment and no costs should be allowed on the written submissions served on 7 January 2011 because they were late:  see 52PD5.10(6)(b).  He submits that David Steel J’s order for costs should be varied so that 50% of the costs of what was known before him (and this court) as “application (2)” should remain as awarded and 50% should become costs in the contempt application.     Mr Brandon further submits that Mr Masri should only be permitted to take out of the £140,000 in court any sum awarded as costs on this appeal or in relation to the hearing before Steel J.  The balance should remain on account pending the outcome of the contempt application.
5.	We agree with Mr Salzedo’s submission that there should be an 80%/20% split in the manner he has proposed.   We are sure he is correct in saying that even if the point on the identity of the information in Mr Bartlett's affidavit had been conceded on behalf of Mr Masri, there would still have been a hearing before this court in relation to all the other aspects of the appeal or adjourned application for permission to appeal that were raised by the companies.   At the hearing before us the “identity issue” took no time at all because the court indicated at the outset that it was inclined to allow that appeal.   When Mr Salzedo made his submissions on that point he did so with the maximum of economy.
6.	We do not accept the argument that the costs of the outline argument dated 7 January 2011 should not be allowed as part of the costs of the appeal.   It is significant that the appellant companies themselves put in a substantially revised outline argument on 10 January 2011.  Further, there is no suggestion that the appellants were prejudiced by receiving Mr Salzedo’s document on 7 January, some 5 days before the hearing. 
7.	The total costs claimed are comparatively modest and it would be both a waste of time and money to send them off to a detailed assessment. We have examined Mr Masri’s Schedule of Costs carefully.  We note that the companies make no specific submissions on hourly rates or other detailed aspects of the Schedule of Costs.   However, we disallow the costs of the assistant solicitor KLXD's fees for “reviewing skeleton arguments” etc (£915).  It is excessive to have four solicitors (including one partner) as well as counsel working on that aspect.  We also disallow the partner SRM's fees for attending the appeal (£1,687).   One solicitor would be reasonable for a half day hearing.  We have considered the hourly rates and counsel’s fees generally.  They are not outside the bracket allowed for this type of litigation in the Commercial Court or Court of Appeal.  
8.	Therefore we assess the costs of the appeal which Mr Masri is entitled to recover from the companies as 80% of the adjusted total of £23,167.00, viz. £18,533.00.  The remaining 20% of the figure of £23,167 will be costs in the application to exclude the evidence of the enquiry agents or the contempt application.   (We were informed on 27 January 2011 that the companies were not pursuing their application to exclude the enquiry agent evidence from the contempt hearing).  
9.	As for the costs of the hearing before David Steel J,   it is important to recall that there were a very large number of other issues before the judge on which he had to make decisions. As we have only disturbed one of them, we conclude that the just result is that the judge’s costs order should remain undisturbed.  That will mean that his order that the companies must pay £45,000 on account of Mr Masri’s costs pending a detailed assessment will also remain.
10.	With regard to the sum of £140,000 that the companies have paid into court as a condition of Rix LJ granting limited permission to appeal, it is clear from [28] of Rix LJ's judgment of 16 December 2010 that this sum was intended to be security for the costs of Mr Masri of the CMC before Steel J and of the appeal to this court.  In our view there should be an order that from that sum,   £63,533.00 be paid out immediately to the solicitors acting for Mr Masri.  That figure comprises: (a) the sum of £45,000 that David Steel J ordered the companies to pay on account of costs pending a detailed assessment of Mr Masri’s costs of the CMC, which sum has never been paid by the companies, together (b) with the figure of £18,533, which is 80% of the summarily assessed costs of Mr Masri on the appeal.
11.	The balance of the £140,000 should be retained in court in respect of (a) the balance of costs payable in respect of the CMC before Steel J until the completion of a detailed assessment, in accordance with the judgment of Rix LJ and (b) to await the outcome of the contempt hearing.   This latter point was accepted on behalf of the companies at paragraph 5.2.5 of Mr Brandon’s written submissions on costs.
12.	The parties should draw up an agreed draft Final Order to deal with all aspects of the court’s decisions on the appeal, the adjourned application for permission to appeal and costs.  It must be submitted to the court by 4pm on Wednesday, 2 February 2011.