Kerry Underwood

COSTS FOLLOWING DISCHARGE OF WORLDWIDE FREEZING ORDER

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Les Ambassadeurs Club Ltd v Albluewi [2020] EWHC 1368 (QB)

the Queen’s Bench Division of the High Court ruled on costs after discharging a casino’s Worldwide Freezing Order against a customer, who sought his costs of the Worldwide Freezing Order and the continuation and discharge applications, given findings of lack of risk of dissipation and material non-disclosure.

The casino said that as the court had criticised the customer, costs should be the customer’s costs in the case, but the court rejected this submission as the outcome of the applications had not hinged on his criticisms of the customer, and the casino’s non-disclosures were an independent matter.

The customer sought indemnity costs, arguing that non-disclosure breached an important duty, taking the matter “out of the norm”, and that there had been no basis for alleging risk of dissipation.

The court distinguished cases where a freezing order application had no basis from those, as here, where it was arguable, but the evidence failed to establish risk of dissipation.

Standard basis costs were ordered.

Relevant factors included the non-disclosure, its inter-relationship with whether risk of dissipation was established and the importance of upholding the duty of disclosure in without notice applications.

However, none of this was decisive and the non-disclosure was not in bad faith; the casino had failed to appreciate the potential relevance of certain matters to the risk of dissipation.

There is no general practice that material non-disclosure leads to indemnity costs, but it is relevant, and deliberate or culpable non-disclosure usually will.

Considering whether to order an interim payment, the court described the starting point for interim applications as “pay as you go” and referred to CPR 44.2(8) – payment on account, absent “good reason” otherwise.

Since enforcing any judgment the casino obtained might be difficult, due to absence of assets within the jurisdiction, it was just to allow the casino to set off the customer’s costs judgment against any judgment the casino obtained, by not ordering an immediate interim payment.

This was “not a point of general application” but reflected the customer’s concession that the casino had a good arguable case, and the “unsatisfactory features” of the customer’s indebtedness.

Written by kerryunderwood

June 8, 2020 at 9:45 am

Posted in Uncategorized

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