QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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CHARLES RIDLEY |
Claimant |
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DUBAI ISLAMIC BANK PJSC |
Defendant |
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Robert Anderson QC and William Edwards (instructed by Baker and McKenzie) for the Defendant
Hearing dates: Written submissions received.
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Crown Copyright ©
"Covid-19 Protocol: This judgment will be handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down will be deemed to be TBC. A copy of the judgment in final form as handed down can be made available after that time, on request by email to the judge's Clerk"
Christopher Hancock QC (sitting as a Judge of the High Court):
(1) Should Mr Ridley be awarded his costs of the application to set aside?(2) If the answer to (1) is yes, should I summarily assess those costs and if so, in what amount?
(3) Should any costs order in favour of Mr Ridley be set off against the Bank's judgment against Mr Ridley?
(4) Should I grant permission to appeal to the Court of Appeal?
(5) What further directions should be given, and in particular:
(i) What dates should be set for the service of an acknowledgement of service and defence?(ii) What date should be set for a CMC?(iii) Should the matter be set down for the Shorter Trial Scheme?(iv) Should the matter be transferred to the London Circuit Commercial Court?(v) Should directions be given for steps to be taken in relation to disclosure under the Pilot Scheme prior to the CMC?
Costs.
(1) First, it submits that, since Mr Ridley did not in fact need to serve out, the application to set aside was unnecessary and the costs wasted. However, in my judgment it is clear that the Bank would have applied on the same grounds to strike out Mr Ridley's claims had the claim form been issued without leave. That is because the Bank's points all went to the merits of the claims. I therefore have no hesitation in rejecting this argument.(2) Secondly, it is submitted that the application would have succeeded had it not been for Mr Ridley's amendments of his claim form and Particulars of Claim, and that the costs of the application should be treated as costs thrown away by reason of the amendment. Again, I do not accept this submission. It is not correct that the only reason that the application failed was because of the amendments; I would have rejected the application on the basis of the unamended claim, but the amendments simply strengthened Mr Ridley's position. Moreoever, the Bank continued with its application in the face of the amendments. What are within the scope of the normal order as to costs are costs thrown away by reason of the amendments. Thus, insofar as extra costs were incurred by reason of the fact that Mr Ridley's claim form in its amended form, and the evidence supporting that, were not available at the initial hearing, in my judgment this would justify a reduction in costs. I have no evidence to assess the amount of such extra costs.
Summary assessment.
(1) The amount of the costs claimed seem to me to be both reasonable and proportionate, given the complexity of the argument.(2) If extra costs have been caused by amendment, as I have noted, then the costs should be reduced accordingly. I have no evidence of this at present.
Set off.
Permission to appeal.
(1) The first is the suggestion that I should have dealt with the argument on abuse of process at this stage, because, contrary to my judgment, it is not a fact dependent inquiry. No authority is cited in support of this assertion. Indeed, as Mr Morrison, pointed out, it runs counter to the passage from the judgment of Lord Bingham in Johnson v Gore-Wood cited in my judgment, where the learned judge said that the inquiry had to take into account all the facts of the case. In my judgment, the Bank has no real prospect of success on this argument.(2) The second relates to my treatment of the submission that the injunction sought by Mr Ridley was an anti-enforcement injunction. The Bank suggests that my judgment is based on the relevant delay being that between the enforcement step and the taking of proceedings in England. That is to misread my judgment. I considered whether it would clearly be the case that the delay overall (including the earlier delay) would render Mr Ridley's claim untenable, and concluded that I could not be sure on the basis of the evidence in front of me that it did. Again, this is not a matter that can be judged in the abstract, and I consider that the matter should be tested on the facts before the Court of Appeal is involved. Again, I take the view that the Bank has no real prospect of success on this argument at this stage.
(3) The third matter raised by the Bank is the question of whether, in my treatment of service by alternative means, I had effectively concluded that in any case involving a bilateral treaty service pursuant to which would take some time, there will always be a good reason for alternative service. That was not what I held. I held that, given the very peculiar facts of this case, involving a party in gaol, the fact that that incarceration would be unnecessarily lengthened by following the bilateral treaty constituted a good reason. This does not mean, as the Bank suggests, that in every case involving a bilateral treaty, that will constitute a good reason for alternative service. Again, I take the view that the Bank has no real prospect of success on this point.
Acknowledgement of service and Defence.
Further pleadings.
Date for CMC.
Shorter Trials Scheme and Transfer to Circuit Commercial Court.
Steps in relation to disclosure pending the CMC.