COMMERCIAL COURT
Strand London WC2A 2LL |
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B e f o r e :
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FAST FERRIES ONE S.A. | ||
Claimant | ||
And | ||
FAST FERRIES AUSTRALIA PTY | ||
Defendant |
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High Holborn House, 52-54 High Holborn, London. WC1V 6RL
appeared on behalf of the Claimant.
MR. G. DUNNEY (instructed by Messrs. HoLman Fenwick & Willan) appeared on behalf of the Defendant.
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Crown Copyright ©
MR. JUSTICE STEEL: I shall make an order in principle that Judgment be entered for the Claimants on the sums that are due, pursuant to my Judgment. It appears that there is outstanding some dispute as to the precise figures, and I allow the parties until Friday to reach agreement, failing which they must come and see me on Friday. However, it seems to be common ground, as I understand it, whatever the precise figures are, that the Claimants have done better by a margin - a small margin - than the offer they made on 24 December.
Subject to one point, it seems to me that it follows that the Claimants should have their costs on the standard basis up to 14 January, and it also follows, as a matter of justice, that they should have their costs on an indemnity basis from 15 January. That is, as I understand it, pursuant to CPR 36/21 the appropriate order unless it would be unjust to make such an order. I note that none of the criteria set out in sub-rule 5 of that rule have been prayed in aid by the Defendants as features which would have, if taken into account by the Court, given rise to the conclusion that it would be unjust to make the order. There does not seem to be any good reason why the cost and time involved in this trial could not have been appropriately avoided by the acceptance of this offer. Therefore, I make that order. However, those costs shall not include the costs relating to the issue, which was raised with regard to an attempt to recover the costs of ING's - or IMB as I have called them in my judgment - expenses in pursuing their recovery - a claim which was abandoned. That is an issue which I think it is appropriate to hive off as a separate matter. It was not an insignificant sum at stake of Australian $120,000. The Claimants must pay the Defendants' costs of that issue, including, if there is any doubt about it, the costs relating to obtaining the statement from Mr. Cox.
The counterclaim is dismissed. The Defendants will have to release the security for costs guarantee.
I think that covers the ground on at least the form in which the order is presented by the Claimants.
MR. DUNNEY: My Lord, I would ask for permission to appeal. The most important question which I would identify to your Lordship as the one worthy for appeal is whether this really is a case which falls into the same category as Mr. Wadworth, or whether we are dealing with a completely different sort of business here, where these sort of damages were not recoverable as a matter of law in the way the law presently stands as special damages. This is a matter which, in my submission, the Court of Appeal, could fairly investigate and could perhaps help to clarify the law because if Mr. Percy is right, it effectively means that one can recover such damages in virtually every case. That does not seem to have been what the Court of Appeal were saying in Wadworth -v- Lyle. So, there does seem to be a real point here. If we have a prospect of success on that point, then, of course, the very intricate and interesting argument that we had on Section 35 then comes into play, and that is clearly a point on which the Court of Appeal ought to have something to say. However, in my submission, the question of the special damages, bearing in mind that the test is one on which we have some prospect of success ---- It is not a very high threshold that the Court of Appeal had laid down, and until a year or so ago, we would have had a right to appeal. In my submission, this is an appropriate case were we ought to have leave to appeal on the special damages point, and then, if it arises, on the Section 35(a) point.
MR. PERCY: My Lord, we oppose that. Your Lordship has found quite clearly in paragraph 38 of your Lordship's judgment that there was special knowledge in this case. Your Lordship has made specific findings of fact. Therefore, we do fall squarely within Hadleigh v Baxendale. If this is a matter which is of interest to the Court of Appeal, then in our submission it should be the Court of Appeal which determines that and not your Lordship, given your Lordship's very clear findings of fact.
MR. JUSTICE STEEL: Mr. Dunney, you will have permission to appeal. I do not believe that I identify any serious and important issue of principle here, but I take the view that where there is, as here, a final trial which would have given rise to an automatic right to appeal before, the Court should be careful to be honest in considering whether there is no reasonable grounds for success on appeal. I think it is appropriate to grant leave, and I do so. Whether it will interest them, I rather doubt.