CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPANIES COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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H&P Advisory Limited |
Claimant |
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Barrick Gold (Holdings) Limited (formerly Randgold Resources Limited) |
Defendant |
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George Spalton KC and Joshua Folkard (instructed by Norton Rose Fulbright LLP) for the Defendant
Hearing dates: 8th & 14th May 2025
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Crown Copyright ©
Mr Simon Gleeson:
Detailed issues regarding costs
Reasonable Expenses
Pre-Judgment Interest
"14. There are some contexts (for example which side of the road to drive on) when the existence of a clear default rule is important, even if there is much which can be said for both competing options. I am satisfied that the default interest rate for US$ awards in the Commercial Court going forward should be US Prime, irrespective of whether the claimant has a US place of operations or not and irrespective of whether the claim is a maritime claim or not."
"27. The Appellant's arguments in this case highlight the importance of the principle that the court does not inquire into the detailed financial position of the claimant, but looks only at general or class attributes. To examine properly, for example, the claimant's financial position throughout the relevant period; the borrowing carried out by her, when and on what terms; whether and how she needed so to borrow; the uses to which she might otherwise have put the money and the financial consequences of so doing; the extent to which any of these matters were known or in the reasonable contemplation of the Respondent etc. would have required a mini or indeed major trial, consumed significant time and expense and may well not have resulted in definitive answers. The broad approach which the court adopts is fair, practical and proportionate."
"A relevant factor in the exercise of the court's discretion as to interest is whether the successful claimant has sought payment of the money in question promptly. Where they have chosen not to pursue a claim for their own reasons and have made that known to the defendant, so that their own failure to prosecute their claim is the predominant cause of being kept out of their money, a court may decide not to award interest (see Sawiris v Marwan [2010] EWHC 89 (Comm) (Teare J) at [59] and authorities referred to there)."
"[Dr Bristow] in a telephone call to [Ian Hannam] on 27 September 2018 proposed to pay either $2m plus expenses or, if contested, nothing other than expenses."
I therefore do not accept that there was ever any ambiguity in the minds of H&P as to what they had been offered, and that the decision to reject it was taken formally and with the benefit of advice. The position set out in the letter was that H&P had entered into a contract with Barrick for it to act as advisor on the transaction on terms which involved a fee of US$18m, that this was now due, and that they therefore rejected the offer of US$2m.
"I do not consider that the successful claimant's refusal of an offer which meets his claim should be disregarded simply because the claimant wished to pursue another claim which did not succeed. For this purpose, it does not seem to me that the court needs to consider whether he was acting properly or in good faith or not. If he was erroneous in proceeding with the other claim, he should not be treated as entitled to do so on the basis that he will nonetheless not be subject to the withholding of interest from the defendant on the claim which does succeed. Although the defendant has had the use of that money, in principle, where there is acceptable offer, it is the claimant who should bear the risk and cost of failure. He has taken a deliberate decision not to accept an offer which would satisfy the claim which he can establish in law." [130(6)].
"Put simply, I do not accept that the refusal of an offer of X in order to pursue a bona fide claim for 3X should, when the claim for 3X fails and an award of X is made, ordinarily or at any rate automatically be regarded as a scenario in which the claimant can fairly be regarded as having so acted as to deprive himself of a claim to statutory interest on X".
The Part 36 Offer
"(1) this rule applies where upon judgment being entered
a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
For the purposes of paragraph (1), in relation to any money claim or money element of a claim, "more advantageous" means better in money terms by any amount, however small, and "at least as advantageous" shall be construed accordingly.
where paragraph (1)(a) applies, the court must, unless it considers it unjust to do so, order that the defendant is entitled to
costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and
interest on those costs."
Costs
Before the Part 36 Offer
The Part 36 Offer
The Reserved Costs