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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Blockchain Optimization S.A. & Anor v LFE Market Ltd & Ors  EWHC 3656 (Comm) (18 December 2020)
Cite as:  EWHC 3656 (Comm)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
London EC4A 1NL
B e f o r e :
|(1) BLOCKCHAIN OPTIMIZATION S.A.
(2) PETROCHEMICAL LOGISTICS LIMITED
|- and -|
|(1) LFE MARKET LIMITED
(2) LFE GROUP HOLDINGS LIMITED
(3) JAMES (AKA JIM) AYLWARD
(4) BENJAMIN LEIGH HUNT
(5) WHITE TIGER GLOBAL OPPORTUNITIES FUND
(6) WHITE TIGER ASSET MANAGEMENT LTD
Unit 1 Blenheim Court, Beaufort Business Park, Bristol, BS32 4NE
Web: www.epiqglobal.com/en-gb/ Email: email@example.com
(Official Shorthand Writers to the Court)
ROWAN PENNINGTON-BENTON (instructed by Pinder Reaux) appeared on behalf of the First, Second and Fourth Defendants
Crown Copyright ©
"The costs liability of your clients to WTAM is going to be more than the amount summarily assessed [under the strike out costs order] and therefore for the sake of proportionality, we suggest your clients agree to a 14 day extension so as to allow the costs issue concerning WTAM to be canvassed and hopefully dealt with."
"Payment of the £45,000 must be made to us by close of business on Friday, 21 August 2020. If it is not, our clients reserve the right to apply without further notice to you for an unless order, requiring payment of the costs to be made, failing which the first, second and fourth defendants' Defence will be struck out and for a non-party funding disclosure order."
"I am afraid I do not have any further instructions in respect of those [costs orders] other than the client repeating that he will pay within 14 days from today the outstanding Sir William Blair costs order, but I appreciate that it is going to fall upon some fairly tired ears, but the instructions I have in that regard are the instructions I have. Of course I appreciate these are orders and these have to be paid."
A little further down he said:
"I make the simple point that if two applications are pending by or will shortly be made rather by the claimant, at least some costs will necessarily be incurred and legitimately payable by the claimants in responding to those applications. It is not -- they may not necessarily be huge, but at the very least we would be entitled to the costs of amending the defence and so on, but look, these are not defences to not paying a court order, I do not suggest that they are, but equally I have the instructions that I have and all I can say is that it is being said that they will be paid, but I appreciate that what they really want is for them to be paid."
"… before making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case. Of course, it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of case or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified."
"Maintaining public confidence in the Court's ability and willingness to secure compliance with its orders is an important and legitimate objective of an unless order in itself …"
"(1) The imposition of a sanction for non-payment of a costs order involves the exercise of a discretion pursuant to the Court's inherent jurisdiction.
(2) The Court should keep carefully in mind the policy behind the imposition of costs orders made payable within a specified period of time … that they serve to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications.
(3) Consideration must be given to all the relevant circumstances including: (a) the potential applicability of Article 6 ECHR [a point not taken here]; (b) the availability of alternative means of enforcing the costs order through the different mechanisms of execution; (c) whether the court making the costs order did so notwithstanding a submission that it was inappropriate to make a costs order payable before the conclusion of the proceedings in question …"
(c) does not arise in this case.
"(4) a submission by the party in default that he lacks the means to pay and that therefore a debarring order would be a denial of justice … should be supported by detailed, cogent and proper evidence which gives full and frank disclosure of the witness's financial position including his or her prospects of raising the necessary funds where his or her cash resources are insufficient to meet the liability."
The strength of the test that must be satisfied in that respect is emphasised by Sir Richard Field and I agree with it.
"(5) Where the defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue to contest the proceedings unless there are strong reasons for not so ordering.
(6) If the court decides that a debarring order should be made, the order ought to be an unless order except where there are strong reasons for imposing an immediate order."
"The unless orders in the terms sought by the claimants are not appropriate in this case for the following reasons:
(1) the defendants did not shirk from responsibility to pay the orders, but the primary reason why D4 cannot secure cash funds with which to pay the costs remains the effect of the freezing order, albeit since discontinued. This is the claimants' fault.
(2) Immediately prior to the CMC, the claimants intimated a series of imminent applications to amend the statement of claim to join Mr Ghertsos, to further amend to reflect an assignment of the claim from C1 to C2. It is inevitable that these applications, if successful, will require the claimants to pay the costs to the defendants. At the very least the defendants would be entitled to their costs of the amendments and the late decision to join and file a claim against Mr Ghertsos and to deal with the assignment. If the first claimant is to exit the proceedings, then the first claimant's potential liability for the costs of the claim will need to be addressed."
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE