Jersey Unreported Judgments

Companies - costs and leave to appeal.

[2023]JRC050

Royal Court

(Samedi)

29 March 2023

Before     :

R. J. MacRae, Esq., Deputy Bailiff

 

IN THE MATTER OF THE REPRESENTATION OF SHINHAN SECURITIES CO LTD (FORMERLY SHINHAN INVESTMENT CORP)

AND IN THE MATTER OF KS ASIA ABSOLUTE RETURN FUND IC

AND IN THE MATTER OF ARTICLE 155 OF THE COMPANIES (JERSEY) LAW 1991

Advocate N. M. Sanders for the Representor.

Advocate J. Harvey-Hills for the First Respondent.

Advocate N. H. MacDonald for the Second Respondent.

judgment

the deputy bailiff:

Background

1.        The Royal Court gave judgment in this case on 30 December 2022 (Representation of Shinhan Securities Co Ltd [2022] JRC 293).  This decision does not purport to summarise the December Judgment.  The Act of Court dated 30 December 2022 recites that upon various undertakings of the First Respondent ("the Fund") being given to the Court in writing, the Court stayed the proceedings for the purpose of arbitration in Hong Kong in accordance with the Arbitration Agreement, as defined in the December Judgment. 

2.        The case was re-listed before me on 15 March 2023 for the purpose of the Court considering:

(i)        The Fund's application for costs of and incidental to Shinhan's Representation.

(ii)       The Fund's consequential application, if successful, for an interim payment on account of costs; and

(iii)      Shinhan's application for leave to appeal to the Court of Appeal.

3.        I will deal with these issues sequentially.

Costs

4.        The principles upon which costs are ordered from the Royal Court are well understood.  It is accepted that the Royal Court has a broad discretion in relation to costs pursuant to Article 2(1) of the Civil Proceedings (Jersey) Law 1956, which provides that:

"The costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid."

5.        This discretion is to be exercised in accordance with well-established principles.  The starting point is the decision of Commissioner Page in Watkins v Egglishaw [2002] JLR 1, as approved by the Jersey Court of Appeal in Flynn v Reid [2012] (2) JLR 226.

6.        In Watkins v Egglishaw, Commissioner Page said:

"(7) The principles that should guide the court in the exercise of its discretion in this area appear to me, therefore, to be as follows, stating them as shortly and simply as possible:

(a) The court's overriding objective in considering costs is, as in everything else, to do justice between the parties.

           (b) In many cases, that objective will be fulfilled by making an award of costs in favour of the "winning" party, where a "winner" is readily apparent. In any event, the "follow the event" rule can still be a useful starting point.

           (c) It is a mistake, however, to strain overmuch to try to label one party as the "winner" and one as the "loser" when the complexity or other circumstances of the litigation do not readily lend themselves to analysis in these terms.

           (d) The discretion as laid down in art. 2 of the Civil Proceedings (Jersey) Law 1956 is a wide one and ought not to be treated as fettered by any particular supposed rule or practice, other than that the discretion should be exercised judicially and broadly in accordance with the guiding principles referred to in In re Elgindata (No.2) and A.E.I. v. Phonographic Performance.

           (e) It is, accordingly, open to the court to have regard to any and all considerations that may have any bearing on the overriding objective of doing justice. Its task is to take an overview of the case as a whole (Bank of Credit & Commerce Intl. v. Ali (No. 4), per Lightman, J.). The new Civil Procedure Rules governing civil litigation in the English courts provide that the court "must have regard to all the circumstances" and then go on to spell out certain matters that such circumstances include, the "conduct of all the parties" being one and "whether a party has succeeded on part of his case, even if he has not been wholly successful" another (Civil Procedure Rules, para. 44.3(4)). To a large extent, however, the particular matters mentioned do no more than state the obvious and it is unnecessary to import them verbatim, in any formal way, into the practice of the Royal Court.

           (f) It is implicit in this that, even though a party would otherwise be regarded as having been "successful," justice may require that costs should not automatically follow the event."

7.        In this case there can be no doubt that the Fund was successful in its application to stay the proceedings.  Indeed after the December 2022 Judgment was handed down, the Court indicated by email dated 11 January 2023, that it was 'provisionally of the view', subject to hearing argument, that the costs of and incidental to the application should be borne by Shinhan on the standard basis, to be taxed if not agreed.  Counsel for the Fund accurately described this as the Court's 'soft indication' of its position.  Having considered the matter, the Fund adopted the Court's provisional view - observing there was no question that the Fund was the 'clear winner' after a two day hearing, having regard to the contents of the December Judgment.

8.        The position of Shinhan in its skeleton argument appeared initially to have been in similar terms, in that at paragraph 55 Shinhan said:

"Shinhan accepts that costs will follow the event and that the appropriate order to be made is the one adverted to by the Deputy Bailiff, namely for costs to be awarded in favour of the Fund on the standard basis."

9.        However, when the matter was heard, twelve days after the skeleton argument was signed by counsel for Shinhan, Shinhan changed its position.  Shinhan was not bound by what it said in its skeleton argument and was entitled to adopt a different approach.  Shinhan argued that although it was appropriate for Shinhan to bear its own costs of and incidental to the Fund's application for a stay, the costs of both the Fund and the Second Respondent, Ogier Global Nominee (Jersey) Limited, should be costs in the cause.  It was said that the Court should have regard to the background to the dispute between the parties, which is set out in the December Judgment, particularly at paragraphs 1 to 5 inclusive, and that it was too early to pre-judge who should bear the costs incurred by the Fund and the Second Respondent.  The proper order in respect of those costs may ultimately be that they should be costs in the winding up.  Counsel for Shinhan accepted that if the proceedings were unsuccessful in their entirety and the Court did not order a just and equitable winding up of the fund, then it would be appropriate at that stage to order Shinhan to pay the costs of the proceedings. 

10.      I have considered these arguments and concluded in the exercise of my discretion that the appropriate and just order is that Shinhan pay the costs of the Fund on the standard basis to be taxed if not agreed (subject to what I say below about an interim payment).  This was a substantial interlocutory application and the identity of the successful party is clear.

11.      Advocate MacDonald also made an application in relation to the costs of the Second Respondent, arguing that his client should also have his costs from Shinhan.  The costs of the Second Respondent were of an entirely different magnitude to those incurred by the Fund.  The Fund's costs of and incidental to its application for a stay are said to exceed £600,000.  Advocate MacDonald said that his client's costs were approximately £15,000, as his client had not wished to duplicate the efforts of the Fund.  Advocate MacDonald's submissions on behalf of his client were brief.  In short, he argued that his client was convened both to the proceedings issued by Shinhan seeking a just and equitable winding up and to the application for a stay.  It was never suggested that his client was not a proper party to either application - plainly it was as a 9.3% shareholder in the Fund by overall net asset value, with a shareholding worth approximately $70 million.  His client supported the application for a stay and actively, although to a limited extent, participated in the application.  In the submissions he made when the application was heard, he said that his client supported a stay pending arbitration and opposed the relief sought by Shinhan - although only the former is relevant for these purposes.  Although his client was not subject to the Arbitration Agreement made between Shinhan and the Fund, the Second Respondent was, as with other shareholders, subject to an arbitration clause in identical terms in separate subscription agreements.  It was agreed by all parties that the winding up of the Fund would affect all shareholders and accordingly neither the application for just and equitable winding up nor the application for a stay affected the Fund only.  It was reasonable for the Second Respondent to participate in the hearing and it also should have its costs of doing so.  The claim for costs was resisted by Shinhan.  It was said that the involvement of the Second Respondent in the application for a stay was unnecessary; that the Second Respondent was not seeking any relief itself; that the points made on behalf of the Second Respondent could have been made by correspondence as opposed to by representation at the hearing and although the principle was that costs should 'follow the event', there was no 'event' as between the Second Respondent and Shinhan for the purposes of the application for a stay.

12.      Essentially for the reasons identified by Advocate MacDonald in his submissions, I agree in the exercise of my discretion that it is appropriate to characterise the Second Respondent as a successful party, supporting as it did the arguments put forward by the Fund.  In the circumstances, the Second Respondent too should have its costs of and incidental to the Representation paid by Shinhan on the standard basis.

The Fund's application for an interim payment

13.      The Fund advanced five propositions as follows:

(i)        There is now a well-established jurisdiction to make an order for an interim payment on account of costs prior to the assessment or taxation process.  It was not disputed that this was the case.  However, on behalf of Shinhan, it was said that an interim payment was not appropriate in all cases and that the Court should carefully consider the nature of the proceedings before making such an order.  It was said on behalf of Shinhan, correctly it appeared, that these proceedings could be distinguished from the other Jersey cases where such an order had been made.  It was said that the other cases were akin to 'writ type actions', as they might be described in England, and not claims begun by way of Representation such as this.  These were not hostile proceedings begun by way of an Order of Justice, but proceedings begun by Representation to which the shareholders had been convened seeking certain relief in relation to a company.  In Monteagle International Limited v Grocery Market Research Limited [2023] JRC 037, Commissioner Sir Michael Birt said at paragraph 18:

"There is also an additional reason for considering that an order for payment on account should be the 'usual' or 'normal' order.  It helps discourage unnecessary interlocutory jousting if the cost of making unsuccessful applications (in circumstances where the Court has felt it right to award costs rather than order costs in the cause) is brought home to the losing party by making him put his hand in his pocket at that stage."

14.      It was said on behalf of Shinhan that this was not an instance of 'interlocutory jousting' and that such procedural / tactical applications are not features of proceedings begun by way of Representation. 

15.      However, the principle underlying the making of such orders (see Crociani v Crociani [2014] JCA 095) is that a party with a benefit of a costs order should not be kept out of its money simply because the precise total owing to it is not yet ascertained and is subject to taxation.  As Beloff JA said in Crociani:

"16.      In my view the achievement of justice, to which all exercises of discretion under procedural rules aspire, would usually require that a party, who is, pursuant to a court order, entitled to its costs, should be paid on account a percentage of the amount he is likely to recover on taxation calculated on a conservative basis to avoid any real risk of over payment.

17.      This conclusion is consistent with and supported by the jurisprudence in England and Wales at a time before the CPR contained its present presumption.

18.      In Mars UK Limited v Teknowledge Limited (Costs) [1999] 2 Costs LR 44 (''Mars'') - the first relevant decision - Jacob J identified the principle in this way [at pp. 3-4]:-

           "I now turn to the second issue, whether or not there should be an order for interim payment. The first thing to do is to consider what the general rule should be, interim payment or not.  There is no guidance given in the rules other than that the Court may order a payment on account.  There is no guidance in the Practice Direction.  So I approach the matter as a question of principle.  Where a party has won and has got an order for costs, the only reason that he does not get the money straightaway is because of the need for a detailed assessment.  Nobody knows how much it should be.  If the detailed assessment were carried out instantly, he would get the order instantly.  So the successful party is entitled to the money.  In principle, he ought to get it as soon as possible.  It does not seem to me to be a good reason for keeping him out of some of his costs that you need time to work out the total amount.  A payment of some lesser amount which he will almost certainly collect is a closer approximation to justice.  So I hold that where a party is successful, the Court should, on a rough and ready basis, also normally order an amount to be paid on account; the amount being a lesser sum than the likely full amount.""

16.      In my view the principles supporting an application for an interim payment on account of costs apply equally to proceedings such as this which are begun by way of Representation.

(ii)       The second submission made on behalf of the Fund was that there was 'virtually a presumption' in favour of such a payment being ordered.  Counsel for the Fund said that he had been unable to identify any Jersey case where the Court had failed to make an order in favour of a party seeking a payment on account of costs.  Reference had been made to paragraph 18 of the judgment in Monteagle, above, which described such an order as the 'usual' or 'normal' order.  Commissioner Birt added at paragraph 19:

"Ultimately, it is a matter of discretion according to the circumstances of a particular case and in my judgment, there is no good reason not to make the usual order in this case."

(iii)      The third proposition was that the calculation of the appropriate payment to be made by the paying party is a 'rough and ready exercise' - see paragraph 23 of the judgment of the Court of Appeal in Crociani.  However, the Court of Appeal went on to say at the end of paragraph 27 of its judgment that 'The question is always whether the Court seized of such an application for payment of an interim costs order is adequately informed so as to be able to make an estimate of a reasonable sum'.

(iv)      The fourth principle advanced was that a summary of the costs needs to be prepared by the party seeking such a payment.  Such a summary / schedule was referred to in the 'postscript' to the Royal Court judgment in Crociani v Crociani [2013] JRC 250 at paragraph 25 onwards.  The summary comprised a list of the fee earners in question employed by the relevant Jersey firm, applying the prevailing factor A rates and a factor B uplift which is usually approximately 50% - subject of course to the receiving party being able to argue for a different uplift on taxation.

17.      It is clear that the receiving party is not obliged to provide a formal bill of costs such as that which would be required for taxation.  It is not necessary for a party to demonstrate financial 'need' in order for it to obtain an interim payment on account of costs (see paragraph 27 of the judgment of the Court of Appeal in Crociani).  The Court of Appeal held (in summary) that the mere fact of there being a pending appeal from the Royal Court of the Court of Appeal is not of itself be an argument for not making an order in favour of the presently successful party absent special circumstances. 

18.      Shinhan accepted that the calculation for interim costs would be a rough and ready exercise but that the summary needed to be prepared so as to give the Court adequate information to make an estimate of a reasonable sum and said, with some force, that some of the information supplied by the Fund in relation to its costs was inadequate.

(v)       Fifthly, in relation to quantum, the Fund had correctly identified that the rates for recovery in respect of Jersey legal fees applying the factor A taxation rates subject to a factor B uplift at 50%.  As to the fees of lawyers from outside Jersey, pursuant to Royal Court Rule 12/7:

"The cost of advice obtained from or work done by lawyers outside the jurisdiction shall be allowable on taxation to the extent that -

(a) where that advice or work done could, in the context of those proceedings, reasonably have been obtained from or done by a Jersey lawyer, the costs allowable on taxation shall be no greater than those allowable on taxation in respect of a Jersey lawyer's fees; and

(b) where that advice or work done could not, in the context of those proceedings, reasonably have been obtained from or done by a Jersey lawyer, the costs allowable on taxation shall be no greater than those which are reasonable in all the circumstances of the case."

19.      Accordingly, in the case of work done by foreign lawyers which could reasonably have been done by a Jersey lawyer, then the costs need to be calculated on Jersey rates and on a factor A and factor B basis.  Birt, Bailiff, reached this conclusion in Incat Equatorial Guinea Limited v Luba Freeport [2010] JLR 435 and said:

"24.-ƒIt appeared initially that Advocate Goulborn might be seeking to argue that the Greffier must calculate a Factor A rate for each foreign lawyer; in other words, he should calculate the rate for a firm practising in, for example, central London. However, it became clear that Advocate Goulborn was arguing that, for all foreign lawyers, the maximum amount that could be allowed for any work was an hourly rate calculated by reference to the applicable Factor A rate for Jersey lawyers uplifted by the Factor B rate for the relevant case.

25.-ƒIt seems to me that the answer to Advocate Goulborn's submission is to be found in the terms of r.12/7, quoted at para. 8 above. It is clear that paras. (a) and (b) envisage two different situations. In the circumstances envisaged by para. (a), the work done by the foreign lawyer is work that could have been undertaken by the Jersey lawyer, e.g. preparing a witness statement, drafting a pleading. In those circumstances, it is only fair to the paying party that the amount allowed on taxation should be no greater than that which would be allowed for a Jersey lawyer to do the same work. Indeed, this is what para. (a) says in unambiguous terms. A Jersey lawyer would be entitled to an hourly rate calculated by reference to the Factor A rate current at the time the order for costs was made, uplifted by such Factor B rate as the Greffier allows in relation to the particular case. That determines the maximum hourly rate which a foreign lawyer may be allowed on taxation for any work falling within para. (a). It follows that the Greffier must, in relation to such work, check the hourly rate claimed by the foreign lawyer against the hourly rate calculated by reference to the Factor A and Factor B rate which would be allowed for a Jersey lawyer. If the hourly rate claimed by the foreign lawyer exceeds the amount which would be allowed for a Jersey lawyer, it must be reduced to the hourly rate for the Jersey lawyer. If the hourly rate of the foreign lawyer is equal to or less than the Jersey rate, the hourly rate claimed by the foreign lawyer may be recovered. [My emphasis]

26.-ƒThe circumstances envisaged by para. (b) are different. This relates to work done by the foreign lawyer which, in the context of the proceedings, could not reasonably have been done by a Jersey lawyer. In those circumstances, the amount recoverable by the foreign lawyer is not related to a Jersey lawyer's fees; it is simply what is reasonable. It is for the Greffier to assess in a particular case what is reasonable but clearly in some circumstances, e.g. the use of specialist counsel or solicitors, the hourly rate allowed may be greater than that which could be recovered by a Jersey lawyer."

20.      The costs of English counsel are treated as a disbursement and on taxation the Court is likely to be concerned principally with the reasonableness of the fees incurred and will not usually approach those costs on a factor A / factor B basis. 

21.      The percentage of the receiving party's costs ordered to be paid on an interim basis depends upon the facts of any particular case.  The Court is to take a 'cautious' approach to the quantum claimed and (paragraph 30 of the decision of the Court of Appeal in Crociani) the Court held that the appropriate payment on account should be 33.3% of the sum anticipated to be claimed on taxation.

22.      In Francis v Jersey Financial Service Commission [2018] JRC 064A, Commissioner Sir Michael Birt was faced with a case where no information complying with the requirements in Crociani has been supplied on behalf of the Commission.  He observed at paragraph 21: "No information was given as to the basis upon which these fees were calculated."  The Commission had not, inter alia, prepared its costs claim on a factor A and factor B basis.  The Court said at paragraph 28 that there were three options open to it, namely to refuse to make an interim order because of absence of the necessary material; to direct the Commission to produce the necessary material and then hold a further hearing, or to 'make a very conservative order which would probably be much lower than that which might have been ordered if [the case had been adjourned for a proper summary to be provided]'.  The Commissioner elected to follow this final course which he regarded as fair and proportionate.  The Court proceeded on a 'conservative basis' and assessed the interim payment accordingly.

23.      In Financial Technology Ventures v ETFS Capital Limited and Tuckwell [2021] JRC 118, the Court ordered an interim payment in the sum of £1.182 million.  The Court had determined that the plaintiffs, after a lengthy trial, should recover 50% of their costs and accordingly ordered that the relevant defendant (Mr Tuckwell) pay 25% (i.e. one half of certain of the costs which may be sought by the three plaintiffs) within two months of the judgment.  The order extended only to the costs of the Plaintiff's Jersey lawyers, English counsel, the certain costs of and incidental to the trial including various ancillary costs, but did not extend to the costs of the three law firms from outside the island engaged by the plaintiffs, the costs of which ran into several millions of pounds and to which the paying party objected to in their entirety.  The Court said at paragraph 60:

"In any event, these are matters for taxation, but bearing in mind the Court's obligation is to be cautious... I have decided to proceed on the footing that Mr Tuckwell may well, as will be his right, object to the costs of the entirety of the sums billed by the said firms.  In any event, the bills were not subject to the factor A / factor B analysis that is required by authority."

24.      With the principles and previous decisions of the Court which have been drawn to my attention in mind, I now turn to the claims.

25.      First, the fees incurred by Mourant.  These were calculated on a factor A and factor B basis and totalled £215,823.50.  It is said, by way of objection to these costs, that the fees were excessive, that in excess of nine lawyers were involved; that two partners were involved, and that accordingly there is evidence of unnecessary duplication.  However, although there were several lawyers working on the case, over 90% of the fees related to the work carried out by three lawyers, including the two partners.  The reason that there were two partners engaged in the case is that one lawyer with day-to-day conduct of the case was admitted to the partnership in February 2022 and it was appropriate for her to remain involved in the case.  Shinhan did not indicate what their Jersey legal fees were and it is not possible to determine that at this stage that the Mourant fees were 'excessive' as claimed.  I was told a substantial amount of work was done over a five month period.  In any event, what was produced was in compliance with good practice and I have no doubt that it is appropriate to order that 50% of the Mourant fees set out in the schedule be paid to the Fund by way of an interim payment. 

26.      The second claim is for the costs of Sidley Austin, which are described as the 'Fund's Hong Kong lawyers'.  The total cost claim is £173,062.  The reasonably lengthy skeleton argument contained no detail at all as to the work done by the Hong Kong lawyers.  All the Court and Shinhan were presented with was a figure in a schedule - nothing more.  In oral submissions, the advocate for the Fund said 'As far as I know' the Hong Kong lawyers were involved in locating an expert (Mr Ma), instructing him, giving him some help with his research, helping with his final product and preparing cross-references.  Accordingly their principal role was to assist Mr Ma in producing his expert report.  The Hong Kong lawyers were also present, remotely, throughout the hearing last year.  On 14 March 2023, the day before the costs hearing, the Fund produced a 'summary' of the Hong Kong lawyers' fees identifying the name of each Hong Kong lawyer (there were five), indicating there the time each had spent on the case and their hourly rate.  The partner charged a rate of US$1,420 per hour.  The vast majority of Sidley Austin's fees (in excess of $190,094) related to the 'expert evidence' and the balance, $18,689, were what was described as 'more administrative' fees which may have related to matters connected to the arbitration as they were the Fund's solicitors of record in relation to the arbitration.

27.      It was said on behalf of Shinhan that it instructed its Hong Kong expert directly - accordingly there was no need for a Hong Kong law firm to be instructed, let alone run up the significant fees that were claimed in this case.  Instructing the Hong Kong expert was a task that should have been performed by the Jersey law firm and accordingly, in accordance with Practice Direction 12/7, any sums claimed on account of the work done by the Hong Kong law firm should have been calculated by reference to Jersey factor A rates and a factor B uplift.  A partner charging £1,000 an hour was far more expensive than the cost of using a Jersey lawyer to do such work.  These are matters for taxation and, as there may be an objection to the entirety of these costs on taxation, I do not think it appropriate to award an interim payment in respect of this claim.

28.      The second substantial disbursement claimed by the Fund were the professional fees of Mr Ma, totalling £114,674.05.  Mr Ma gave evidence on the first day of the hearing last year, but apparently attended both days.  It was reasonable to instruct Mr Ma as the Court ordered that both parties be at liberty to obtain such evidence. 

29.      It was said on behalf of Shinhan that the fees charged by their expert were almost exactly half those charged by Mr Ma.  Mr Ma charged just over 1 million Hong Kong dollars, and Mr Rogers charged just over half a million Hong Kong dollars.  Again, apart from the raw figure, there was no detail at all supplied in relation to the work that Mr Ma had done although, of course, the Court knew that he had produced a lengthy report and had given evidence.  It would have been helpful, in relation to Mr Ma's fees, to have a brief statement setting out the work that he did, as it was suggested that he may have done work beyond producing the expert report.  It was accepted that both experts on Hong Kong law were eminent practitioners, as was clear from their CVs and the evidence they gave.  But that of itself does not justify the fees claim.  Adopting a cautious approach, I award that 35% of the fee claimed be paid by way of an interim payment. 

30.      The third and final significant disbursement were the fees of David Chivers KC, the Fund's English counsel.  Again, there is nothing in the Fund's skeleton argument or supporting documentation detailing the work done - simply the figure of £157,579 in respect of his fees.  It was said in oral submission that Mr Chivers is an extremely accomplished company law KC and that he was instructed over a lengthy period, assisted in drafting the skeleton argument and was present at both the hearing prior to the hearing of the application for the stay and the substantive hearing.  Shinhan said that they also instructed leading counsel, a Mr Smith KC, whose fees between the end of May 2022 and 1 September 2022 amounted to £28,800.  It was accepted it was reasonable to instruct leading counsel in this case, although English law issues did not arise.  It is a complex case and a helpful overview of the relevant authorities in other countries assisted.  It was observed on behalf of Shinhan that English counsel fees were over three-quarters of the amount of those incurred by Mourant, which was described as a 'high starting point'. 

31.      On the limited information available to me, I order that 35% of the fees claimed should be met by way of interim payment. 

32.      I put to one side the small sum incurred by Mourant in respect of disbursements (which are not particularised) and come to just under £6,000. 

33.      Although a draft bill of costs need not be prepared, it is necessary for the Court to be 'adequately informed so as to be able to make an estimate of a reasonable sum' in respect of the costs of English counsel, the Hong Kong expert and the Hong Kong lawyers.  It was insufficient, in my view, for the Court to simply be presented with a figure or, in the case of the Hong Kong lawyers, more information but (in that case) figures arguably calculated on the wrong basis and without, in relation to all three claims, any supporting narrative.  Even a few paragraphs describing the work done by each lawyer / set of lawyers the subject of the relevant disbursement might have been sufficient, and certainly it would have been helpful for the paying party to have received well before the hearing.  In fact, a description of the work done by the respective lawyers was, to a large extent, only revealed in oral submission sur le champ during the hearing.  When such significant sums are being sought such material (which does not need to be extensive) is required so that the paying party is in a position to make considered submissions and the Court has material enabling it to adopt anything other than the most cautious of approaches.

34.      Accordingly, the sum to be paid by way of an interim payment on account of costs by Shinhan to the Fund is:

50% of £215,823.50 (£107,911.75)

35% of £114,674.05 (£40,135.92)

35% of £157,579.00 (£55,152.65)

Total:  £203,200.32

35.      The Fund sought payment within 14 days; Shinhan suggested two months - I order that this sum be paid within 28 days. 

Leave to appeal

36.      Shinhan sought leave to appeal.  The principles upon which the Court considers applications for leave to appeal are well understood.  The test for leave to appeal was recently confirmed by Bailhache JA sitting as a single judge of the Court of Appeal in Adeem Investment Holding Company KSCH v Najeeb Al-Humaidhi and ors [2022] JCA 099 and was originally set out by the Court of Appeal in Crociani & Ors v Crociani [2014] 1 JLR 426.  In order to obtain leave to appeal, the appellant must show that:

(i)        the appeal has a real prospect of success;

(ii)       a question of general principle falls to be decided for the first time; or

(iii)      there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.

37.      Shinhan's skeleton argument sets out eight separate grounds of appeal.  Heavy reliance is placed on the Cayman decision in FamilyMart.  I do not propose to summarise Shinhan's draft grounds of appeal as they were all matters considered in the December Judgment and, as the Fund says, to a large extent they boil down the central argument that a claim for just and equitable winding up is not arbitrable as a matter of public policy.  Such an argument is inconsistent with the established position in Jersey and, as the survey of authorities carried out by the Royal Court in the December Judgment reveals, other jurisdictions.

38.      All the matters set out in the grounds of appeal were addressed by the Royal Court in its decision and I do not consider that any of the criteria for granting leave to appeal are satisfied in this case. 

Authorities

Representation of Shinhan Securities Co Ltd [2022] JRC 293. 

Civil Proceedings (Jersey) Law 1956. 

Watkins v Egglishaw [2002] JLR 1. 

Flynn v Reid [2012] (2) JLR 226. 

Monteagle International Limited v Grocery Market Research Limited [2023] JRC 037. 

Crociani v Crociani [2014] JCA 095. 

Crociani v Crociani [2013] JRC 250. 

Incat Equatorial Guinea Limited v Luba Freeport [2010] JLR 435. 

Francis v Jersey Financial Service Commission [2018] JRC 064A. 

Financial Technology Ventures v ETFS Capital Limited and Tuckwell [2021] JRC 118. 

Adeem Investment Holding Company KSCH v Najeeb Al-Humaidhi and ors [2022] JCA 099. 

Crociani & Ors v Crociani [2014] 1 JLR 426