KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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CRAFT DEVELOPMENT SCI (suing by its provisional administrator Mr Ngoua Elembe Hiob, pursuant to an appointment by the High Court of Douala, Cameroon, Judgment 200/CIV of 8 March 2021) |
Claimant |
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(1) ACTIS LLP (a firm) (2) ACTIS AFRICA REAL ESTATE FUND 3 aka Actis Africa Real Estate 3 LP (a firm) (3) ACTIS AFRICA REAL ESTATE 3A LP aka Actis Africa Real Estate Fund 3 (a firm) (4) ACTIS AFRICA REAL ESTATE 3 CO-INVESTMENT SCHEME LP aka Actis Africa Real Estate Fund 3 (a firm) (5) ACTIS AFRICA REAL ESTATE 3C LP aka Actis Africa Real Estate Fund 3 (a firm) (6) ACTIS GP LLP (a firm) |
Defendants |
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Ms Zoe O'Sullivan KC, Mr Charles Holroyd (instructed by Charles Russell Speechlys LLP) for the Defendants
Hearing dates: 13 May 2025
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Crown Copyright ©
MRS JUSTICE STACEY:
Litigation history and chronology
Issues in the application
Stifling
The evidence on stifling
Stifling conclusions
Delay
Merits of the claim
Actis' alternative remedies
Conclusion
Amount of security to be provided
"(i)The appropriate quantum is a matter for the court's discretion, the overall question being what is just in all the circumstances of the case. In approaching the exercise, the court will not attempt to conduct an exercise similar to a detailed assessment, but will instead approach the evidence as to the amount of costs which will be incurred on a robust basis and applying a broad brush (see also Excalibur Ventures v Texas Keystone [2012] EWHC 975 (QB) § 15)."
(ii)In some cases, the court may apply an overall percentage discount to a schedule of costs having regard to (a) the uncertainties of litigation, including the possibility of early settlement and (b) the fact that the costs estimate prepared for the application may well include some detailed items which the claimant could later successfully challenge on a detailed assessment between litigants. There is no hard and fast rule as to the percentage discount to apply. Each case has to be decided upon its own circumstances and it is not always appropriate to make any discount.
(iii)In deciding the amount of security to award, the court may take into account the 'balance of prejudice' as it is sometimes called: a comparison between the harm the applicant would suffer if too little security is given and the harm the claimant would suffer if the amount secured is too high. The balance usually favours the applicant: an under-secured applicant will be unable to recover the balance of the costs which is unsecured whereas, if the applicant is not subsequently awarded costs, or if too much security is given, the claimant may suffer only the cost of having to put up security, or the excess amount of security, as the case may be (see also Excalibur § 18) …
(v)In determining the amount of security, the court must take into account the amount that the respondent is likely to be able to raise. The court should not normally make continuation of their claim dependent upon a condition which it is impossible for them to fulfil."
Postscript
Note 1 Although Mr Tchumtchoua is referred to as Mr Valère in the pleadings and the earlier judgment, it is understood that this is his first name and that the correct form of address is Mr Tchumtchoua which has been adopted in this judgment. [Back] Note 2 There is a dispute between the parties as to whether Mr Kamdem was the claimant in all of the Cameroonian proceedings, or if Craft was validly struck off the Cameroonian register of companies and thus required litigation by Mr Tchumtchoua to reinstate, but nothing turns on it. The point is that Craft was reinstated and Mr Hiob as the provisional administrator could and has brought the litigation against Actis. [Back]