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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Ferand Business Corporation & Ors v Maritime Investments Holdings Ltd & Anor [2021] EWHC 197 (Comm) (29 January 2021) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2021/197.html Cite as: [2021] EWHC 197 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Strand, London, WC2A 2LL |
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B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
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(1) ![]() ![]() (2) ANGELIKI FRANGOU (3) MARITIME ENTERPRISES MANAGEMENT S.A. |
Claimants |
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- and |
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(1) MARITIME INVESTMENTS HOLDINGS LIMITED |
First Defendant/ Additional Claimant |
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(2) KOLEN INTERNATIONAL S.A. |
Second Defendant/ Additional Defendant |
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Ms Caroline Pounds (instructed by Tatham & Co) for the First Defendant /Additional Claimant
Mr Richard Sarll (instructed by Waterson Hicks) for the Second Defendant/Additional Defendant
Hearing dates: 5-8 October 2020
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Crown Copyright ©
HH Judge Pelling QC:
Introduction
Issues
i) Whether the claimants should recover the costs of the two applications made on behalf of the second defendant on what was meant to be the first day of the trial (an application to re-amend the second defendant's Defence and to rely on additional witness statements, both of which were dismissed in a judgment delivered at the start of what was meant to be day 2 of the trial see Ferand Business Corporation and others v. Maritime Investments Holdings Limited and Kolen International SA [2020] EWHC 2665 (Comm);
ii) Whether the claimants should recover some or all of the costs of the claim other than the costs of the trial on the indemnity as opposed to the standard basis; and
iii) Whether the claimants should recover some or all of the costs of the trial on the indemnity as opposed to the standard basis.
Further, it does not follow that because these issues are resolved in one way as between the claimants and the second defendant, they should be resolved in the same way as between the first and second defendants. Although the same three issues arise, the facts and matters relevant are in part different.
Applicable principles
Claimants' Costs of the Claim
Claimants' Costs of the Applications by the Second defendant to Re-Amend the Defence and for Permission to Rely on Further Witness Statements
"It is plain that an application as wide-ranging as the one made as late as this one has been made will threaten the trial date because if permitted it puts in issue allegations that were at least impliedly admitted and raises new positive cases not before mentioned that involve both issues of law and fact, as well as raising for the first time claims by way of counterclaim not previously mentioned. Since the proposed amendments all post-date the service of the witness statements served in accordance with the CCMC directions given in March 2020, it is inevitable that all the new issues would have to be investigated. It may be that additional witness statements would be required, possibly from individuals who are not currently to be witnesses, and it is possible that disclosure will have to be re-visited as well. None of this could be done without vacating the trial."
As the claimants very experienced solicitor said in his witness statement resisting the application, it would have taken several months to carry out the work necessary to respond to the proposed amendments if permitted and would inevitably lead to the trial being lost and for the need for a trial of greater length to be listed many months in the future. The application to adduce the additional statements was equally objectionable in part at least they were put forward in support of the case set out in the proposed re-amended defence but in part were responsive to the claimants' case without explaining why the material could not have been put forward in the original statements filed on behalf of the second defendant or why it could not have been provided weeks if not months earlier than it was. The air of unreality that surrounded all this was completed by the second defendant's time estimate of only 20 minutes for an application that it must have been appreciated would be contested and which took the better part of a day to resolve.
The Impact of the Applications on Claimants' Preparation for Trial
"The various applications were served on the Claimants by D2 one working day before and one working day after the date by which the Claimants were to and did file/serve their opening submissions. Neither the Claimants, nor Claimants' counsel, can possibly have been expected to read, consider, assimilate, take instructions on, adduce responsive evidence in respect of, and prepare for trial in respect of all those new allegations, new evidence and new documents, including a new serious allegation of fraud.
The effect of the very late applications on counsel for the Claimants was three-fold. First, counsel were forced away from preparing for the trial that the Claimants and the Court had intended should be prepared. Second, counsel were at a loss to know what case the Claimants were going to have to face only a few days later. Third, because D2 had given a hearing estimate for its various applications of only 20 minutes, counsel for the Claimants were forced to write to the head of the Commercial Court list to complain and propose a more realistic estimate, based on information known at the time (revised on Day 1 once preparation had been carried out over the weekend). This is not reasonable or normal conduct in litigation and the interlocutory judgment recorded expressly that "This is a factor that I intend to take into account when making the relevant costs orders in relation to each of these applications" (§3). The disruption it caused before the trial was vast, the first day of the trial was lost and counsel thereafter had to work through the night during the trial to try to catch up with time taken away from their planned preparation, and to plan how to proceed in terms of submission with a guillotined trial.
The entirety of Day 1 was lost due to D2's very late applications. That wasted the Court's time and increased the pressure on the Court, and Counsel, to hear the witness evidence in the time remaining. The Court will recall that the only way to save the trial, and avoid an adjournment, was to extend the length of the hearing days and guillotine the time available to each party for cross-examination."
Claimants' Costs of the Trial
The First Defendant
Conclusion