BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Illiquidx Ltd v Altana Wealth Ltd & Ors [2025] EWHC 1627 (Ch) (30 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/1627.html
Cite as: [2025] EWHC 1627 (Ch)

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EWHC 1627 (Ch)
Case No: IL 2020 000079

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
30/06/2025

B e f o r e :

CHIEF MASTER SHUMAN
____________________

Between:
ILLIQUIDX LIMITED
Claimant
- and -

ALTANA WEALTH LIMITED & ORS
Defendants

____________________

RICHARD SALTER KC, MARK VINALL and CHARLES WALL (instructed by Reynolds Porter Chamberlain LLP) for the Claimant
TOM MOODY-STUART KC and BEN LONGSTAFF (instructed by Fieldfisher LLP) for the Defendants

____________________

HTML VERSION OF APPROVED JUDGMENT - COSTS
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    CHIEF MASTER SHUMAN :

  1. The background, factual matrix and analysis of the claim is set out in the judgment, [2024] EWHC 2191 (Ch), which dealt with six substantive applications/ issues. Reference should be made to that judgment. In addition there were cross applications by the parties for disclosure. Given how close the trial was I sent out in a table form the outcomes of each part of those disclosure applications. The parties have confirmed that they do not require a separate judgment on the disclosure issues.
  2. The legal principles

  3. CPR rule 44.2 gives the court a wide discretion as to what costs order should be made and the creative orders that could be made.
  4. Under CPR rule 44.2,
  5. "(1) The court has discretion as to—
    (a) whether costs are payable by one party to another;
    (b) the amount of those costs; and
    (c) when they are to be paid.
    (2) If the court decides to make an order about costs—
    (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
    (b) the court may make a different order."
  6. It is plain from the rules that although costs will generally follow the event, so the losing party will pay the costs of the successful party, the court may make a different order.
  7. CPR 44.2(4) sets out various matters that the court will have regard to,
  8. "(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including -
    (a) the conduct of all the parties;
    (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
    (c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
    (5) The conduct of the parties includes—
    (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction—Pre-Action Conduct or any relevant pre-action protocol;
    (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
    (c) the manner in which a party has pursued or defended its case or a particular allegation or issue;
    (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim; and
    (e) whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution."
  9. In Straker v Tudor Rose (a firm) [2007] EWCA Civ 368 Waller LJ set out an uncontroversial sequential approach to the issue of costs, paragraphs 11-12, summarised in Cook on Costs at paragraph 22.16 as,
  10. "First, is it appropriate to make an order for costs?
    Second, if it is, the general rule is that the unsuccessful party will pay the costs of the successful party.
    Third, identify the successful party …
    Fourth, consider whether there are any reasons for departing from the general rule in whole or in part. If so, the court should make clear findings of the factors justifying the departure."
  11. The claimant referred the court to Matrix Receivables Ltd v Musst Holdings Ltd [2024] EWHC 2167 to emphasise that symmetry is important when looking at the appropriate costs order to make in respect of an application to strike out or for summary judgment. Freedman J at paragraphs 26 to 28,
  12. "26. The Court does not have to go so far as to find that the application for summary judgment was not reasonably brought. If that were the case, that would marginalise the general starting point that the successful party recovers its costs. The case of Sharp v Blank turned on its own facts, not least that there was a mixed success in the applications. In the instant case, MRL has succeeded entirely in resisting MRL's summary judgment application. There is no reason to depart from the starting point that the costs should be paid by the unsuccessful applicant."
    27. Further, it is important to identify the reasoning why the usual order on a summary judgment or strike out application is that the unsuccessful party should pay the costs. That is in part because of the regime within CPR 44.2(2). It is also because of a symmetry. In the event that the applicant is successful, the action comes to an end and the applicant generally recovers the costs of the action. So likewise, if the strategy does not pay off and the applicant loses, the applicant stands to bear the costs. It is a disincentive to interlocutory applications to know that this starting point exists and operates in practice. If it becomes watered down, then the impact of deterring or inhibiting interlocutory applications is reduced.
    28. It is still a starting point. I have considered carefully whether there is any reason to depart from that starting point. In all circumstances, and in the exercise of the court's discretion, I have concluded that there is no reason to do so. Accordingly, the costs of and occasioned by the application for summary judgment are to be paid by Musst as the unsuccessful party to MRL.."

    Costs orders

  13. These were discrete applications before the court and as such it is appropriate to consider them separately, as they were argued before the court.
  14. The defendants' application for strike out and/or summary judgment in respect of the claimant's case on AV Securities made by application notice dated 15 March 2024 and permission for the defendants to amend the statements of case accordingly

  15. The defendants' application for strike out or summary judgment was dismissed.
  16. The defendants' original position was that the issue of costs should be reserved to the trial Judge who would be in the better position to evaluate the totality of the evidence. The emphasis being that AV Securities was a weak aspect of the claimant's pleaded case, and that this had been "very finely balanced"[1] . There may be cases where it is appropriate to make an order reserving the costs of an application to the trial Judge, this was not one of them. The defendants have now rowed back from that position instead submitting that the appropriate costs order should be viewed through the lens of the findings of the trial Judge and the conduct of the claimant on these issues. Although that appears to be, in effect, a refinement of their earlier position, that the application should not be considered in isolation from the rest of the case but be viewed with the benefit of hindsight. They submit that the court should order the claimant to pay the costs and in the alternative make no order as to costs.
  17. It was the defendants who elected to bring a relatively late application to strike out or obtain summary judgment of the claimant's case on AV Securities. This was a claim concerning the business opportunity of monetising Venezuelan sovereign debt. Whilst it appeared to be a deceptively narrow point, in fact the AV Securities was "inextricably built into the package of confidential information and therefore the business opportunity that is this claim"[2]. The extent of the claimant's expertise and contacts and its knowledge of the suitability of AV Securities was a matter that needed to be tested at trial.
  18. It is appropriate for the court to make a costs order and the claimant was entirely successful in resisting the claim for strike out or summary judgment. I have then considered all the circumstances including specifically the factors identified in CPR rule 44.2(4) (a) and (b), and the conduct of the parties. There is no reason to depart from the general rule that costs follow the event.
  19. The defendants are to pay the claimant's costs of this application.
  20. The claimant's application for permission to amend its claim in respect of AV Securities made by application notice dated 15 March 2024

  21. There are two aspects to this: the costs of the application and the costs of and occasioned by the amendment; and potentially a third, the costs thrown away.
  22. Permission was granted for the claimant to amend its claim in respect of AV Securities. The claimant's position is that this application, together with the other parts of its application to amend, dealt with below, were effectively a draw so that there should be no order as to costs. The defendants contend that this should be a matter reserved to the trial Judge. It is unclear whether their position has rowed back from this aspect of the application as well. If it has then they would be seeking the claimant to pay the defendants' costs or in the alternative no order as to costs.
  23. This aspect of the application is different to the other matters before the court. It is incumbent on a party pleading breach of confidence to set out full and proper particulars of all the confidential information on which it intends to rely and its purported misuse. The defendants sought clarity about "the Detail" through Part 18 requests and in correspondence. It was suggested by the claimant, which was not accepted by the court, that they were seeking to plead further detail following disclosure and to make "minor" amendments to address the defendants' complaints. The amendments were summarised in paragraph 59 of the judgment as,
  24. "The claimant seeks to amend how it has pleaded the selection of the custodian, by making additions or deletions in the draft re-re-amended confidential annex 1 in paragraph A11 and each of the 3 sub-paragraphs thereunder. It has made substantial amendments in the draft re-re-amended confidential annex 5, adding another approximately 22 pages to its pleading on misuse, which are not opposed. In addition, the claimant seeks to add a further four pages under subparagraph 5(4) about the selection of the custodian, this is controversial."
  25. As to the claimant's change in case paragraph 73 summarises it as,
  26. "As to the amendments I do not consider that changing the claim from pleading expressly that the claimant introduced AV securities to the defendants to the claimant identifying AV securities as an appropriate custodian can be characterised as adding detail. It is implicit in that amendment that the claimant accepts that it did not introduce AV securities to the defendants, which brings with it a connation that the defendants already knew of AV securities. That is clear from the fact that the claimant retains the word "introduced" in respect of EFG, a potential other custodian, and notably no longer uses that word in respect of AV securities in paragraph A11. It does use "introduced" in the draft re-reamended confidential annex 5, but is silent on who introduced AV securities. The implication must be that it was not the claimant. The question then is how does this change feed into the claimant's case on confidential information? It must now be asserted that the claimant identified AV securities as a suitable custodian, that information was conveyed to the defendants, who subsequently misused it."
  27. It is appropriate for the court to make a costs order in this case. It was the claimant's conscious choice to plead a positive case that it was the claimant who introduced the custodian to the defendants. It was their decision to change tack, to fit their pleaded case to the disclosure. The argument that the defendants maintained, throughout this litigation, was that the claimant had not pleaded its case in a sufficiently clear way for the defendants to understand the case they had to meet. In granting permission the court required the claimant to make revisions to its draft pleading as follows,
  28. "Paragraph A11(2), CA1. The claimant's case is that Mr Amore identified AV securities as a suitable custodian in his email dated 30 September 2019, otherwise that would not be included under the detail as m1. The claimant pleads that the defendants were introduced to AV securities but is silent on who made the introduction. In order for there to be clarity on the pleading and to narrow the issues for trial the claimant is to set out who, on its case, introduced the defendants to AV securities.
    Paragraph A11(3), CA1. At this late stage of the claim and given the lack of clarity historically it is unsatisfactory for the claimant to plead "in the light of, among other things' either it must set out what it relies on as "other things" or delete this and rely on its alleged prior knowledge of AV securities alone.
    Paragraph 5(4)(b), CA5. The same point as set out under (1). The claimant is to set out who, on its case, introduced the defendants to AV securities."[3]
  29. The usual order is that a party seeking to amend their pleading must bear the costs of the amendment. Whilst the court has a wide discretion in terms of the costs orders there is no reason to depart from this principle. There are, as indicated, several aspects to the costs relating to this amendment. I am satisfied that in all the circumstances it is just to order that the claimant pay the defendants' costs of the amendments: that means the costs of the application, the costs of and occasioned by the amendment, and in so far as it possible to identify, any costs thrown away.
  30. The claimant's application for permission to amend its claim in respect of its remaining pleading amendments made by application notice dated 15 March 2024

  31. These amendments comprised three elements: a new allegation of misuse relating to an entity called Service Provider A, detail about an entity called Apex, and the defendants' selection of the PDVSA 2020 bond. Permission was not given for any of these amendments. The other amendment was agreed by the defendants.
  32. Whilst the claimant is right to submit that this aspect of the application was less time consuming, and in the scheme of the overall claim appeared less significant, the claimant still elected to bring this part of the application. That does not preclude the court from making a costs order where it is appropriate to do so.
  33. I am satisfied that a costs order should be made and that the defendants have been entirely successful in opposing this application. Having regard to all the circumstances of the case and the conduct of the parties there is no justification to depart from the general rule that costs should follow the event.
  34. The claimant is to pay the defendants' costs of this application.
  35. The defendants' application for strike out and/or summary judgment in respect of the claim for injunctive relief made by application notice dated 15 March 2024

  36. The claimant had agreed that the claim for an injunction in respect of breaching the Non-Disclosure Agreement should be struck out, the NDA having already expired by effluxion of time, however the temporal calculation was made. That left this element in the prayer to the re-amended particulars of claim, "(b) Misusing the Claimant's Confidential Information [and/or the information referred to in paragraph 3lM above]" and "(c) Unlawfully acquiring, using or disclosing Trade Secrets."
  37. It was the claimant's case that it was possible for equitable and contractual obligations to co-exist and the expiry of the NDA was irrelevant. Whilst this was, I anticipate, more theoretical, the defendants did accept this principle, even though they did not accept the reasoning set out in the claimant's evidence, specifically the witness statement of Mr Hemming.
  38. This was a relatively late application for strike out or summary judgment and although this aspect was considered to be "very borderline" the court decided that this issue should go to trial.
  39. Again, it is appropriate for the court to make a costs order and the claimant was entirely successful in resisting the claim for strike out or summary judgment. I have then considered all the circumstances including specifically the factors identified in CPR rule 44.2(4) (a) and (b), and the conduct of the parties. There is no reason to depart from the general rule that costs follow the event.
  40. The defendants are to pay the claimant's costs of this application.
  41. The defendants' application in respect of trial witness evidence and compliance with practice direction 57AC made by application notice dated 23 April 2024

  42. The claimant was ordered to rewrite its trial witness statements to comply with CPR PD 57AC. This is a process that has governed all trial witness statements in the Business and Property Courts signed on or after 6 April 2021. The practice direction sets out in clear terms the principles applicable to trial witness statements, what they must contain and best practice.
  43. The claimant submits that because the court did not order the claimant's solicitor to file a witness statement, as sought by the defendants, they should only be awarded 50 % of their costs. The defendants submit they should be awarded their costs, without deduction.
  44. At the material time the claimant was under the directorship and senior management of Ms Alabatchka and Mr Amore. They were the key witnesses for the claimant. The defendants' case was that the witness statement of Mr Amore dated 6 March 2024 and the witness statement of Ms Alabatchka dated 6 March 2024 did not comply with PD 57AC and that the claimant should be required to redraft those witness statements in accordance with PD 57AC. That application succeeded. A reading of those statements gave an overall sense that they had been constructed by reference to documents rather than what the witness actually remembered of events, and with the documents being used simply to refresh their memories. They were the antithesis of how trial witness statements should be constructed. Furthermore, and possibly due to the manner of preparation, the witness statements included speculation on the part of the witnesses as to what might have been in the mind of other people.
  45. The claimant quite properly accepts that an order for costs should be made, and acknowledges that the defendants have been, on its submission, 50% successful.
  46. Whilst the defendants did not succeed in obtaining an order that the claimant's solicitor, who signed the certificate of compliance, should provide a witness statement, it was open to the court to potentially make this order. On balance it was not proportionate to do so in addition to requiring the rewriting of the witness statements. This was very much an adjunct to the opposed application to rewrite the witness statements. I also considered that the court should be cautious about embroiling the solicitor into the arena.
  47. Having regard to all the circumstances I am satisfied that the appropriate order to make is that the claimant should pay the defendants' cost of the application, and that there should be no deduction.
  48. There is a further element to this issue. The claimant submits that they must be permitted to potentially recover their costs of producing the original witness statements, not all of that work will be lost because it will feed into the new statements by some of the original text surviving and some of the proofing work that led to the production of the original statement. The claimant suggests it would be unjust for them to be deprived of these costs. However the claimant elected to draft their witness statements without regard to the requirements of PD 57AC, a prescribed process that has been in place for a number of years and the parties are represented by very experienced commercial solicitors. It would similarly be unjust for the defendants to potentially be liable for the costs incurred by the claimant in preparing non-compliant statements where they were required not just to rewrite parts of the statements but to rewrite them in their entirety. It is therefore just for the claimant not to be able to recover the costs of preparing the original witness statements.
  49. The claimant's application for permission to adduce expert evidence made by application notice dated 29 April 2024

  50. The claimant's application was dismissed. The parties have agreed that the claimant will pay the costs of this application. That is the order that the court would have made had the parties not reached agreement.
  51. The cross disclosure applications

  52. This is complex litigation fought with great intensity and at great expense. The disclosure order was made on 7 December 2022 and the court approved section 1A of the Disclosure Review Document. Two disclosure guidance hearings took place, before Deputy Master Raeburn on 27 June 2023 and 26 July 2023. The parties agreed a tranched approach to disclosure and on 20 October 2023 Deputy Master Dovar made an order by consent providing for Extended Disclosure of additional documents arising from changes in the search parameters. The pleaded cases together with extensive confidential annexes evolved so that by the time that the disclosure applications were heard the pleaded cases had reached a re-re-amended stage with supporting confidential annexes numbered 1 to 7.
  53. CPR Practice Direction 57AD requires the parties to exercise a high level of cooperation so that, "disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate … in order fairly to resolve those issues, and specifically the Issues for Disclosure": CPR PD 57AD paragraph 2.4.
  54. As the Chancellor, as he then was, said in relation to the disclosure pilot, which has become PD 57AD, in UTB LLC v Sheffield United Ltd [2019] EWHC 914 (Ch), at paragraph 75,
  55. "I should note that the introduction of the Pilot was intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality."
  56. Although the parties did not make specific oral submissions about the appropriate order in respect of the disclosure applications both have had the opportunity of making written submissions.
  57. The claimant's application for further disclosure pursuant to either paragraph 17.1 or paragraph 18.1 of PD 57 AD made by application notice dated 2 February 2024 and the defendants' application for further disclosure pursuant to either paragraph 17.1 or paragraph 18.1 of PD 57 AD made by application notice dated 15 March 2024

  58. The claimant alleged that they had identified serious gaps in the Extended Disclosure. The defendants maintained that they had carried out very wide ranging searches and a comprehensive review of responsive documents.
  59. The claimant sought disclosure orders in respect of a number of discrete issues: paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of their draft order. Of those the court decided that paragraph 6, concerning certain legal advice received by the defendants, would be ordered. As the defendants had indicated that if the court ordered disclosure they would withdraw the parts of their statements of case which relied on the legal advice they were required to do so. Paragraph 6, which concerned a search across various emails for the word "Ciulla" was agreed. Paragraph 10 which was an unfiltered search for WhatsApp and SMS messages was agreed and temporally limited. Save for those matters the claimant's application for disclosure did not succeed.
  60. The defendants sought a disclosure order in respect of one issue, paragraph 4 of their draft order. That application did not succeed.
  61. The claimant submits that either the court should order costs in the case or no order as to costs. In contrast the defendants have conducted a forensic analysis of the disclosure issues and referenced as an overview the relevant parts of the application, looked at the page counts of the evidence, the skeletons and considered the time taken at the hearing. In summary the defendants seek an order that the claimant pay the defendants' costs of the claimant's application less a deduction of 10%. In relation to the defendants' application they "accept that costs should follow the event, subject to summary assessment".
  62. This, like many aspects of this claim, runs the risk of becoming a form of satellite litigation. It is by no means straightforward to separate out each aspect of the disclosure applications, to carry out the forensic exercise as the defendants suggest they have done. Asserting that the claimant only succeeded on 3 of its 13 disclosure issues is too simplistic and fails to convey how these issues were linked. I also note that throughout this litigation the parties have had more than their fair share of the court's resources. Disclosure, particularly in light of PD57AD, requires a high level of cooperation. Unfortunately disclosure became yet another part of this hard fought litigation where there was no trust between the parties. I am satisfied that it is appropriate to step back and take a more global view on this aspect of the applications. Accordingly the appropriate order to make on the claimant's application for disclosure is no order as to costs.
  63. I note that the defendants accept that they should pay the costs of their disclosure application, albeit that this appears to be subject to the court carrying out a summary assessment of the costs. Given the wide extent of the applications that the court heard over the course of 3 days, with extended sitting hours, it is not appropriate for summary assessment to be conducted on one aspect of the multiple applications that the court heard. It therefore seems that the correct order to achieve justice between the parties and a synergy with the court's view on both parties' approach to disclosure should be no order as to costs on the defendants' application for disclosure.
  64. As has been indicated it is not appropriate for the court to embark on a summary assessment exercise. The hearing exceeded one day. The costs on both sides are substantial. There are challenges, in particular but not exclusively, from the claimant about the breadth of the defendants' legal team working on this case, some of the categories of costs claimed and the number of lawyers in attendance at hearings.
  65. Pursuant to CPR 44.2(8) it is appropriate for the court to order the paying party to pay a reasonable sum on account. However given that both parties have succeeded in part, the court will make an order on account in respect of each part of the applications, where an order for immediate costs has been made, and then calculate which party ultimately must pay, "the net liability". In determining that quantum the claimant urges caution asserting that the defendants' legal costs are "remarkably high, and much higher than the claimant's". It does seem appropriate to be cautious with the schedule of costs, in respect of both parties' costs. It may be that as a crude calculation of 50% of the schedule should be allowed but in light of the court's order on costs, it is only right for the parties to have an opportunity to either agree those amounts on account or have a short remote hearing next week to determine those sums. Alternatively they may wish to see if the trial Judge will direct the amount due on account.

Note 1   Paragraph 86 of the judgment.    [Back]

Note 2   Paragraph 85 of the judgment.     [Back]

Note 3   Paragraph 89 of the judgment.     [Back]

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010