Case Nos: CL-2022-000294; CL-2022-000557; - [2025] EWHC 2529 (Comm)

Incidence of costs

Given this pattern, I consider that the starting points for the appropriate costs orders are as follows:

Genesis should recover its costs against D2-D6.

TMK 510 should recover its costs against Genesis.

Global All Risks Insurers (‘GAR Insurers’) should recover their costs, either from Genesis or from war risks insurers.

Certain modifications and clarifications of that basic position are, however, required.

In the first place, the costs recoverable by Genesis from D2-D6 should not include any costs which were referable only to Genesis’s claiming against TMK 510. It may be that any such costs were small.

The proportion of its costs which Genesis can recover should be reduced to take into account the issues on which it was unsuccessful. These included the significant issues of whether the Genesis aircraft was lost before midnight on 2 March 2022, and that it could claim under its Possessed Cover. I consider that these matters mean that Genesis should recover 85% of its costs.

The liability for costs of D2-D6 should be several, based on their respective lines, but grossed up to make up for TMK 510’s line. I can see that this may be said not to reflect the fact that many of the costs in question will have been devoted to issues on which TMK 510 made common cause with D2-D6 and on which they were all unsuccessful, but it does not appear to me just that Genesis should be unable to recover its costs, save insofar as they relate exclusively to pursuit of TMK 510 or to points on which Genesis was unsuccessful, in full; nor would it do justice to the fact that TMK 510 has been successful to make an order that it should pay Genesis’s costs.

The proportion of TMK 510’s costs which it should recover should be significantly reduced by reason of the fact that it was unsuccessful in relation to most of the points it advanced, including in particular the issues of coverage under the Contingent cover, the scope of the war perils, peril in fact, loss and date of loss. I consider that it should be entitled to recover 65% of its costs.

GAR Insurers should recover 90% of their costs, to take account of the points which they took on which they did not succeed. They should recover directly from D2-D6 by way of a Sanderson order for the respective shares of those Defendants based on their lines on the war risks cover, on a several liability basis. They should recover the share referable to TMK 510’s line from Genesis. Genesis brought what have been found to be unfounded claims against both TMK 510 and all risks insurers, and there is no injustice in its having to bear certain of the costs incurred by the latter and not being able to pass them on to the former.