England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London England EC4A 1NL
		18th January 2013

 


MR JUSTICE STUART-SMITH:

1. The claimant is a limited company incorporated under the laws of Jordan. It is described as a family business and is controlled by Mr Esam Samara. It engages in the business of seismic exploration in the oil industry in the Middle East. The first defendant also engages in seismic exploration in the oil industry. It is incorporated under the laws of Panama, and is part of the multi-national Schlumberger group, which has annual revenues running into many billions of dollars.
2. The parties have recently reached agreement, which will have the effect of releasing the second defendant from the proceedings. I shall therefore refer to the first defendant as the defendant and to the global group as 'Schlumberger'.
3. The dispute arises out of an agreement entered into by the parties on 12 April 2010 which was governed by English law. The context for that agreement was that Schlumberger wanted to tender for a contract with BP for the provision of seismic services in Jordan. There is ample evidence before the court to show that Schlumberger considered with good reason that its prospects of winning the contract would be much improved if it could demonstrate that it was bidding in conjunction with a Jordanian enterprise. The claimant was just such an enterprise, hence the agreement.
4. In briefest outline, the agreement recited that the defendant and the claimant, which was designated in the agreement as the 'Partner', were willing to co-operate in order to win the BP contract, and that if successful 'they will jointly perform the relevant contract according to the terms and conditions hereinafter sent forth'. The claimant was to submit to the defendant a competitive sub-proposal, and the defendant was then to prepare the proposal to be submitted to BP, incorporating details of the work and appointing the claimant as being responsible for the work, or for part of the work in compliance with the sub-proposal. The claimant duly submitted a sub-proposal; there was an argument about pricing; the defendant then submitted its proposal and won the contract.
5. It is the claimant's case that, thereafter, the defendant froze it out of the contract in breach of the obligations that it owed to the claimant, either pursuant to a partnership or by breaching an obligation of co-operation that arose under the agreement, and representations that are said to have induced it. This action was issued on 31^st March 2012.
6. The defendant acknowledges an obligation to co-operate but otherwise denies the claim, alleging that the claimant falls at the first hurdle because its sub-proposal was not competitive. That, says the defendant, was a breach of contract on the part of the claimant, which entitled the defendant to act as it did. What is more, the defendant counter-claims damages that would far exceed the sums claimed by the claimant on the basis that it has suffered substantial losses on the BP contract as a result of the claimant's breach of contract.
7. On this application I am not able to form or express any view on the merits of the claim or the counter-claim, save that it is not alleged that the claim is a sham and the claimant has not shown the claim has a high probability of success.
8. This application was issued on 13 November 2012. It sought an order for security for costs against the claimant, and also an order striking out the claimant's claim against the second defendant. The second limb of the application is no longer effective, so I have been concerned only with the application for security for costs.
9. The draft order served with the application identified that the sum being claimed as security was £500,000.
10. The relevant provisions to the CPR are very well known, and are to be found at CPR 25.12 and 25.13. CPR 25.13 provides so far as is relevant for present purposes:

"(1) 'The court may make an order for security for costs under rule 25.12 if -

(a) it is satisfied having regard to all the circumstances of the case that it is just to make such and order; and

(b)(i) – one or more of the conditions in paragraph (2) applies…

(2) The conditions are -

(a) the claimant is (i) resident out of the jurisdiction but (ii) not resident in a Brussels Contracting State, a State by the Lugano Convention or a Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982...

(c) the claimant is a company or other body (whether incorporated inside or outside of Great Britain) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;...."

11. It is common ground that the burden is on the defendant to show that "there is reason to believe that the claimant will be unable to pay" but the defendant does not have to prove upon the balance of probabilities that the claimant will be unable to pay.
12. The principles to be applied are well-known and well covered by authority. First, unless the threshold conditions set out in CPR 25.13 are satisfied, the jurisdiction to make an order for security for costs does not arise. Second, if the jurisdiction arises, the decision either to make or not to make an order for security for costs is discretionary. Among the factors which may be taken into account are those set out in the notes at part 25.13.13, which are on page 754 of the White Book 2012 Edition:

"The Court has adiscretion under r.25.13 whether to order security for costs having regard to all the circumstances of the case. Among the circumstances which the court might take into account are the following:

(1) Whether the claimant's claim is bona fide and not a sham;

(2) Whether the claimant has a reasonably good prospect of success;

(3) Whether there is an admission by the defendants in their defence or elsewhere that money is due;

(4) Whether there is a substantial payment into court or an "open offer" of a substantial amount.

(5) Whether the application for security was being used oppressively, e.g. so as to stifle a genuine claim.

(6) Whether the claimant's want of means has been brought about by any conduct by the defendant, such as delay in payment or in doing their part of any work;

(7) Whether the application for security is made at a late stage in the proceedings."

13. There is specific authority on the position where a claimant relies upon an ATE policy of insurance as being the basis upon which it says there is no reason to believe that it will be unable to pay. Most recently, Mr Justice Akenhead, in a substantial judgment in Michael Phillips Architects Limited v Riklin (2010) EWHC 834, reviewed the authorities and added his own summary at paragraphs 14-18. That is a section of his judgment which I gratefully adopt without setting it out again, and which I bear in mind at all stages during this judgment without any qualifications save to state that, if it mattered, I would have expressed a potential reservation about the contents of paragraph 18(d) of Mr Justice Akenhead's judgment. However since it is not going to be determinative of this application I do not address it in any detail now.
14. I make limited comments on some of the authorities mentioned by Mr Justice Akenhead in Riklin. First, the case of Nasser v United Bank Of Kuwait [2001] EWCA 556, which was a decision of the Court of Appeal in – as its title suggests – 2001. The relevant passage is set out at paragraph 15 Riklin as follows:

"Since the use and popularity of ATE insurance has emerged, usually associated with conditional fee agreements, there has been some authority on whether and in what circumstances ATE insurance can be considered as providing security for costs. Nasser v United Bank of Kuwait [2001] EWCA 556 was a security for costs case involving a claimant resident outside England. Mance LJ made these obiter remarks at Paragraph 60:

I would interpose at this point that, even where a claimant or appellant is resident abroad, there may of course be special factors indicating that any order for costs will be satisfied in some other fashion. The interesting possibility was raised before us that a claimant or appellant who has insured against liability for the defendants' costs in the event of the action or appeal failing might be able to rely on the existence of such insurance as sufficient security in itself. I comment on this possibility only to the extent of saying that I would think that defendants would, at the least, be entitled to some assurance as to the scope of the cover, that it was not liable to be avoided for misrepresentation or non-disclosure (it may be that such policies have anti-avoidance provisions) and that its proceeds could not be diverted elsewhere. The new arrangements for the funding of litigation certainly appear capable of throwing up possible imbalance, in so far as they permit contingency fee arrangements with uplifts potentially recoverable from losing defendants, but enable claimants to pursue litigation without insuring or securing the defendants' fees. The claimant's contingency fee arrangement in the present case is, however, without uplift."

15. I make two observations. First of all, Lord Justice Mance was there commenting in the abstract, since there was not in fact an ATE policy in existence. Second, Nasser dates from 2001 when the ATE market was considerably less mature than it is now. It must be recognised both that the market is now more mature and that Brit, who provided the insurance which is going to be considered in this case, is to be regarded as a reputable insurer within the market. It is also to be recognised in my judgment that the funding of litigation by ATE policies is, and has for some years now, been a central feature of the ability of parties to gain access to justice. In the absence of evidence to the contrary, the court's starting position should be that a properly drafted ATE policy provided by a substantial and reputable insurer is a reliable source of litigation funding.
16. Turning to Al-Koronky v Time-Life Entertainment Group Ltd (2006) EWCA 1123, which is cited in paragraph 16 of Mr Justice Akenhead's judgment, there was in that case an ATE policy which was avoidable if the claimant had not told the insurers the truth in proposing for the insurance. Since the issue in the case was whether the claimant's claim was fraudulent, it followed that if the claim had been lost it would be because the court had found the very facts that would enable the policy to be avoided. As Lord Justice Sedley said at paragraph 36 of Al-Koronky,

'If the claimants win, they will have no call on their insurers. If they lose, it is overwhelmingly likely that it will be on grounds which render their insurance cover ineffective.'

17. Turning to the case of Belco Trading Co v Kondo [2008] EWCA Civ 205, which is cited by Mr Justice Akenhead at paragraph 17 of Riklin, that was an unusual case in the sense that it was a decision upon an application for permission to appeal against a condition of an order made by the judge below. At the time both of the order below and when it was being considered by the Court of Appeal, the claimant had not procured a policy which could be assessed by the court. So as in the case of Nasser, the observations of Lord Justice Longmore were to that extent made in the abstract.
18. Turning to Mr Justice Akenhead's summary of principles at paragraph 18(c) of Riklin, he said,

'It is necessary where reliance is placed by a claimant on an ATE insurance policy to resist or limit a security for costs application for it to be demonstrated that it actually does provide some security. Put another way, there must not be terms pursuant to which or circumstances in which the insurers can readily but legitimately and contractually avoid liability to pay out for the defendant's costs.'

19. In my judgment, this inevitably requires the court to form a view at this stage on the meaning of the policy and on how readily it may be avoided legitimately and contractually, and also to form a view of the likelihood of circumstances arising which will enable the policy to be readily, legitimately and contractually avoided.
20. Ultimately, on an application such as this, the question is not whether the assurance provided by an ATE policy is better security than cash or its equivalent, but whether there is reason to believe that the claimant will be unable to pay the defendant's costs despite the existence of the ATE policy. It must now be recognised, in my judgment, that depending upon the terms of the policy in question, an ATE policy may suffice so that the court is not satisfied that there is reason to believe that the claimant will be unable to pay the defendant's costs. In this case, the defendant's costs estimate of just over £900,000 has been approved by the court, and the claim for security for costs in the sum of £500,000 should be seen in that context.
21. I would find that subject to the existence of the ATE policy in this case, there would be reason to believe that the claimant would not be able to discharge an order for payment of the defendant's costs. The claimant's own resources are difficult to identify on the evidence with any precision, but Mr Samara makes plain that trading conditions are difficult, and that at present the claimant does not have sufficient liquid assets to pay. Although he identifies capital assets and asserts that they have a substantial capital value, in excess of the written down value shown in the company's books, the nature of those assets, which include well-used computers and field equipment, and the imprecise approach to their valuation adopted by Mr Samara do not inspire confidence that they could or would readily be convertible so as to discharge an order for the defendant's costs. No other significant assets or resources are identified.
22. I therefore turn to the ATE policy in this case. It was disclosed on 5 October 2012 to the defendant's solicitors. Certain amendments have been made to it since then, none of which, of themselves, can be said to increase the risk that it will not be available to fund an order for the defendant's costs.
23. I cite from the policy the following passages:

"How can Recourse help me?

Recourse is an insurance policy that will pay your disbursements, providing they are not recoverable from you opponent. It also covers your opponent's costs and disbursements should your claim be lost. For these costs to be paid, you solicitor must be acting under a conditional fee agreement or a collective conditional fee agreement…

WHAT is insured?

1. We will pay your opponent's legal costs if:

a) a court orders you to pay them following a judgment (including interim costs order) made against you; or

b) you claim is discontinued by written agreement between us, you and your solicitor; or

c) your claim is successful but the damages you are awarded are less then, or deemed by the court not to be more advantageous then, any Part 36 offer, or payment into court made by your opponents or;

d) a court makes a final judgment in you favour, except as under 1c) above, but orders you to pay them.

2. We will pay your reasonable disbursements, reasonably and properly incurred by your solicitor, barrister's fees (where counsel is not acting under a conditional fee agreement)

a) following a judgment made against you by a court; or

b) if your claim is discontinued by written agreement between us, you and your solicitor; or

c)your claim is successful but the damages you are awarded are less than, or deemed by the court not to be more advantageous than, any Part 36 offer, or payment into court made by your opponent."

Further on in the policy is a section entitled: 'What is Not Insured'. It is not necessary to rehearse it in full, it is sufficient to say that the policy covers both the costs of the claim and of the counter-claim.

"Conditions

Failure to keep to any of these conditions may lead the insurer to cancel your policy, refuse a claim or withdraw from an ongoing claim

1. Your Responsibilities

You must

a) observe and keep to the terms of this policy.

b) not do anything that hinders us or the solicitor.

c) tell us immediately of anything that may materially alter our assessment of the claim.

d) cooperate fully with the solicitor and us, give the solicitor any instructions required and keep them updated with progress of the claim

e) use your best endeavours to provide us with any information, documentation or assistance that we need to help us handle any claim

f) take reasonable steps to recover any costs that the insurer pays and pay the insurer all costs that are recovered should these be paid to you.

g) pay to the insurer the insurance premium for your policy (including the applicable insurance premium tax)

h) tell the solicitor to have your opponent's legal costs assessed or audited if we require.

i) minimise anything that the insurer has to pay and try to prevent anything happening that may cause a claim under this policy.

j) allow the insurer at any time to take over and conduct in your name the claim, proceedings or investigation.

k) you must notify us in writing if you want to change your solicitor.

8. Fraudulent Claims

The insurer shall not be entitled to avoid this policy for non-disclosure or misrepresentation at the time of placement except where such non-disclosure was fraudulent on your part.

9. Cancellation

a) You may cancel the policy within 14 days of issue and you will not be liable to pay the insurance premium. If you cancel the policy during this period because your claim settles in your favour you will be liable to pay a fee to us equivalent to the insurance premium.

b) The insurer may cancel this policy immediately without any refund of the insurance premium, and reclaim any payments made under the policy if

(i) you fail to meet any of your responsibilities under this policy; or

(ii) your solicitor refuses, with good reason, to act further for you due to a breach by you of any condition of this policy or because you have otherwise improperly sought to require the solicitor to behave in an unethical manner; or

(iii) without good reason you dismiss your solicitor; or

(iv) you make any claim which is fraudulent or false

c) The insurer may cancel the policy immediately if

(i) your conditional fee agreement terminates for whatever reasons, or

(ii) your solicitor terminates their retainer with you; or

(iii) we believe your claim unlikely to be successful

Provided that the insurer shall be liable to meet the cost of any disbursements together with your opponent's legal costs incurred up to the date of cancellation.

Insurance Premium

The premium payable for this insurance including insurance premium tax at the rate prevailing at the conclusion of your claim, which only becomes due and payable at the conclusion of your claim (unless otherwise stated on the schedule) and providing it is finally decided in your favour whether by a court decision or an agreement to pay you damages.

The level of insurance premium you must pay depends on the stage at which your claim reaches which it concludes. These stages are defined on the policy schedule."

24. It can immediately be seen that the terms of this policy are similar but not identical to the terms of the policy at issue in Riklin. That is not of itself surprising, since both this policy and the policy in Riklin were administered by ARAG. The defendant's criticisms of the policy are summarised in paragraph 26 of the defendant's skeleton. It is submitted that, point one, the defendants have no contractual rights under such a policy; point two, such policies can be avoided by the insurer on a number of grounds; and point three, it was provided on the basis of information not seen by the defendants, so there is little ability to check the accuracy of disclosures to insurers.
25. In his submissions today, Mr Fraser QC concentrated upon the risk of avoidance, but he also focused on the policy conditions which, he submits, give rise to reason to believe that the policy will not be available to fund an order for costs in the defendant's favour. I deal first with the risk of avoidance. Clause eight states, under the heading 'Fraudulent Claims':

'The insurer shall not be entitled to avoid this policy for non-disclosure or misrepresentation at the time of placement except where such non-disclosure or misrepresentation was fraudulent on your part'.

The defendant does not know precisely what information was given to insurers. I would, however, accept the submission that it is reasonable to infer that the information will have been consistent with the terms of the amended particulars of claim, backed as they are by a statement of truth, which must be based upon instructions from Mr Samara.

26. The defendant refers to, and relies upon, the pleading of specific representations at paragraphs 3.3 and 3.4 of the amended particulars of claim, all of which are roundly denied by the defence. The defendant submits that it is 'entirely conceivable' that the court will find in the defendant's favour in relation to all of those representations. If it does, submits Mr Fraser, the information provided to insurers must have included or been based on the same account as the court was rejecting. In consequence, it is submitted that there is reason to believe that insurers may seek to avoid the policy.
27. I reject that submission. There is, in my judgment, no material that raises anything more than a theoretical chance that insurers might seek to avoid the policy on this basis. It is not the defendant's case that the claim is fraudulent or a sham, and there is no basis for the court, on this application, to assume that there is a significant risk that the court would find that it was, or that the findings made by a court would provoke such a reaction from insurers.
28. Even if the claimant's account were rejected, it is a giant step from finding that evidence is incorrect and to be rejected to finding that it is fraudulent. Unlike Al-Koronky this is not a case where a finding of facts in the defendant's favour on the issue of these representations would necessarily or even probably carry an implication of fraudulent misrepresentation by the claimant in proposing for insurance.
29. Turning to the contract conditions, breach of which would allow insurers to avoid or cancel the policy, I would accept that there is a theoretical possibility that a breach may occur. But there is no reason to suppose that the possibility is anything more than theoretical on the evidence that is available to the court on this application.
30. The following features lead me to this conclusion. First, the conditions themselves are not onerous. Second, the claimant has no commercial interest in breaching the conditions. The policy has been taken out for the claimant's protection, and no sensible reason has been offered as to why the claimant would deliberately, or even inadvertently, breach the conditions. Indeed, Mr Fraser accepted that it was not in the claimant's commercial interest to do so. Third, the claimant is represented by very experienced and competent legal representatives who are there to make plain to the claimant its obligations under the policy if any doubt exists. For these reasons, it seems to me that there is no reason to believe that there is more than a theoretical risk of breach.
31. I am conscious that in Riklin, Mr Justice Akenhead concluded that on the facts of that case, a similarly worded ATE policy, also administered by ARAG, did not provide an answer to a claim for security for costs. I have therefore anxiously considered paragraphs 19-29 of his judgment to see whether his reasons in relation to the facts of that case either compel or guide me to reach the same conclusion in the present case. I have come to the conclusion that they do not.
32. I start at paragraph 25, where Mr Justice Akenhead dealt with the contract conditions in that case. He concluded his review of the contract conditions there by saying, 'Thus, it is readily foreseeable that the insurer could, in the context of live litigation, readily be in a position if it so wished, to avoid paying.' However, in the present case, I remain of the view that there is no more than a theoretical risk of breach of the conditions of the present policy for the reasons I have already given.
33. Turning to paragraph 26, where Mr Justice Akenhead dealt with fraudulent claims, it seems to me that the facts of the case there being considered were different from the present case. That is shown, not least by the passage in the centre of paragraph 26, where Mr Justice Akenhead said,

'At first blush, it might be thought that a claim for £150,000's worth of architectural time for a project, which was estimated to cost some £383,000 (and thus about 40% of that cost), in circumstances where it seems to be the case that after three or four months' work, the contractor having gone into administration and the Claimant is said to have done little further work, seems very high'.

No such inference is available on the facts of the present case.

34. The defendant, as I have said, has pointed to the claimant's case on the pleadings specifically in relation to the representations. In response, Mr Mitchell QC, representing the claimant, submits that those representations primarily related to the case against the second defendant. He says that they do not give rise to contract terms, and they do not lead to a claim for misrepresentation, inducing the entering into the contract or otherwise, and he submits, as I have said, that their primary purpose was to establish the collateral claim against the second defendant.
35. I am not convinced that the representations have ceased to have any significance in this case, not least because of paragraphs 9.1.3 and 10.3 of the amended particulars of claim. However, even if they remain in being and in play, there is nothing before the court today which indicates that there is more than a theoretical risk that it will be found, or could be found, or even argued by insurers, that an account of events, which included an account asserting the happening of these representations, was fraudulent.
36. While, therefore, there is a theoretical possibility, it seems to me that the facts here do not suggest than an adverse finding on liability would be likely to justify avoidance by insurers. There is, or may be, as Mr Fraser accepts, a world of difference between a finding that an account is not true, in the sense of being incorrect, and a finding that an account is fraudulent.
37. Mr Justice Akenhead dealt with the cancellation provisions in the policy that he was considering at paragraph 27 of Riklin. There is, to my mind, a significant distinction between the policy in Riklin and the policy in this case. It seems to me clear that if Brit were to cancel under clause 9, it would remain liable to indemnify against defendant's costs which had been incurred before the date of cancellation. It was suggested by the defendant that there is a significant difference between the use of the word 'incurred' in the present policy, and the word 'accrued' in the policy before Mr Justice Akenhead. It is probably undesirable, and wrong in principle to express a concluded view, and I do not do so. However, taken in context, it seems to me that the court is very unlikely to accept an argument that costs that the defendant had incurred, but which were not yet subject of a court order at the date of cancellation, were not to be indemnified, for two reasons: first of all, the wording does not, to my mind, support such a conclusion; and secondly, such a conclusion would be contrary to the obvious commercial purpose of the policy.
38. Mr Mitchell took the point that this particular line of argument had not been raised before today. He was, in my view, right to do so. This point was not, so far as I can find, raised at any stage before today, even in the skeleton argument submitted yesterday afternoon. In those circumstances, Mr Mitchell informed the court that this point has in fact been discussed with the insurers, and that it could have been met by evidence confirming that the insurer accepts the interpretation that I would give to the policy wording.
39. In the circumstances of this application, I accept and rely upon that provision of information by leading counsel without requiring it to be evidenced by a witness statement. It confirms me in the view that I have taken, that defendant's costs incurred at the date of cancellation should be indemnified, and would almost certainly be held by the court to be indemnified, even though a court order requiring the claimant to pay them had not yet been made when the policy was cancelled.
40. Standing back and looking at the matter overall, it seems to me that there is another consideration which is material to the question of whether there is a more than fanciful prospect that Brit are going to avoid this policy. There is evidence before the court that there is a clear and long-standing relationship between Reynolds Porter Chamberlain, a leading firm of solicitors, and ARAG and/or BRIT, which makes it commercially much less likely that BRIT would seek to avoid on spurious or tenuous grounds, thereby jeopardising the relationship which has been built up over the years. Of course this is not binding, and of course it is in the experience of the court and all experienced insurance lawyers that sometimes insurers take spurious points. However, if the question for the court to assess now is whether there is reason to believe that this policy will not be available to fund a payment of the defendant's costs, it seems to me that the long-standing commercial relationship is a matter to be weighed in the balance.
41. Taking all of the evidence that has been placed before the court on this application, I am not satisfied that there is any evidence to support a submission that there is reason to believe that there are grounds on which insurers could or would seek to argue that they were entitled to avoid or cancel the policy. Nor am I satisfied that there is anything more than a theoretical risk that circumstances will arise which will entitle insurers in future to argue that they are entitled to avoid or cancel the policy.
42. In any event, for the reasons I have given, if insurers sought to cancel, they would still be liable to indemnify the claimant against liability for costs incurred up to the date of cancellation. It follows that in my view there is, on the facts of this case, no reason to believe that the claimant will be unable to pay an adverse order for the defendant's costs.
43. I have also considered the submission that the defendant is not a party to the contract and would not be in a position to enforce the contract directly. That submission is factually correct, at least while the claimant is solvent, but it does not subvert the conclusion that I have reached on the central question. It should be noted in passing that the defendant would have open to it the procedures available under CPR Part 72, which would provide a measure of protection in the event that the defendant obtains a costs order against the claimant. In addition, though full argument was not addressed on the point, in the event of the claimant's insolvency, the defendant may obtain a direct right of action pursuant to the provisions of the Third Parties (Rights Against Insurers) Act 1930.
44. For these reasons, this application fails to satisfy the threshold condition. Had it passed the threshold condition, it would have been necessary to consider whether the exercise of my discretion should be affected by the undertaking offered by the claimant's solicitors to notify the defendant's solicitors immediately if circumstances were to arise on the basis of which there was a real possibility that insurers might seek to avoid. As the question has not arisen, I express no concluded view, but I consider that it is likely that such an undertaking, had it been given, would have influenced my view on the exercise of discretion, and that if the undertaking were to be given in any event, it may be influential if the question of security for costs were to be raised again later in the action.
45. Of Mr Samara's other proffered undertakings, I say only that given the disclosure that he has other substantial guarantees outstanding, I would not have felt able to place significant reliance upon the financial undertakings that he had offered.

End of judgment.

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