CL-2020-000092 - [2025] EWHC 2786 (Comm)

The first key issue which arises in this regard is as to what issues fall into the category of ‘issues specifically raised by [Cuba’s] Application on which [Cuba] was successful’ within paragraph 8 of the Judgment Order.

In my view, what was meant by the ‘issues specifically raised by [Cuba’s] Application’ means the issues specific to Cuba’s application; and that an issue which was raised by both Cuba’s and BNC’s applications was not specific to Cuba’s application.

That that should have been the effect of paragraph 8 would be consistent with an intention on Cockerill J’s part not to undermine the order which she made in paragraph 6 of the Judgment Order that CRF should have all the costs of BNC’s application, notwithstanding that there were some issues on which CRF had not prevailed.

I regard this understanding of paragraph 8 as being supported by paragraphs 6-9 and 11 of the Consequentials Judgment. In paragraph 7, what she was saying, as I understand it, is that because in the BNC application, CRF had been successful, and because an exercise of carving out costs of issues was in any event going to take place because of the Bribery allegations, the appropriate course was to make an issues-based order; and that Cuba should be entitled to the costs of those issues on which it was successful, which went outside those issues which it had argued in common with BNC.

In paragraph 8 the judge had identified the most important of those issues, which she called, using the terminology which had been employed by CRF’s counsel, ‘the 1976 issue’ (‘the 1976 Issue’). There is no doubt that those were costs which related only to Cuba’s application. She had then said that they also included ‘in so far as they arise in relation to the Cuba case, the other more minor issues such as the 2020 request for consent and so forth.’ Mr Dudnikov KC says that the reference to the 2020 request is important, because that, he says, was an issue common to both the BNC and Cuba applications and that that shows that Cockerill J intended that common costs should be included in the order in favour of Cuba. I consider, however, that Mr Khurshid KC is correct to say that it is significant that Cockerill J said that costs in relation to the ‘other more minor issues’ would only be Cuba’s ‘in so far as they [arose] in relation to the Cuba case’. That is to say, they would be Cuba’s only insofar as there were additional costs specific to such issues as they arose in relation to Cuba. That is consistent with the judge’s reference in paragraph 9 of the Consequentials Judgment, albeit as regards the 1976 Issue, to ‘Cuba-specific disclosure and evidence’. What she had in mind were costs which were specific to Cuba, rather than overlapping costs which also arose on the BNC application.

This is confirmed by paragraph 11 of the Consequentials Judgment, which says that, in light of the approach she is adopting, ‘you do not have that question of assignment of the costs of the two issues between the two applications’. That shows, to my mind, that the judge considered that there would not be a question of apportioning common costs of the 2020 request issue (or, as I think she meant, any other of the ‘more minor issues’) between the two applications. The only costs she was saying should be Cuba’s were costs specific to Cuba. It was because of that, that the judge considered that she had, as she put to counsel immediately after delivering the Consequentials Judgment, ‘carved a swathe’ through the way in which Cuba had presented its application to her for an interim payment.

As to what issues should be regarded as ‘issues specifically raised by [Cuba’s] application’, I accept the submissions made by Mr Khurshid KC, that these were:

The question then arises as to what level of interim payment is to be ordered. Cuba has not, for the purposes of the current hearing, done an exercise which seeks to strip out Cuba-specific costs in the way in which I consider and have found was intended by Cockerill J’s order.

I reject the suggestion made by CRF that I should therefore make an order for an interim payment of £0. It is clear that there are costs to which Cuba is entitled, and that there should be an interim payment.

It is not easy to make an assessment of what costs are to be assigned to Cuba-specific issues, because the exercise has not yet been properly done. Mr Khurshid KC suggested that it might be a sum in the region of £200,000-£250,000, but contemplated that it might be a sum of £500,000. I considered that it was unlikely to be a sum as low as £200,000-£250,000; and that it was reasonable for present purposes, in the absence of a breakdown of costs by Cuba which reflected the order in its favour, to take the sum of £500,000. That is not to say that Cuba will not be able, once it has performed a proper breakdown, to recover a greater sum, but is the sum which I consider it safe to use for the purposes of the present application.

I will make an order for an interim payment on account of 60% of those costs, namely £300,000.

Mr Khurshid KC did not pursue any suggestion that any payment on account should be ordered to be paid, whether by way of a Sanderson or Bullock order, by BNC.

What he did submit was that a sum of some £375,000 had been ‘set aside from the interim payment that BNC would otherwise have made to CRF’ for the purpose of discharging any costs liability that CRF might have to Cuba, and that the sum which I have ordered should be paid by way of an interim payment should be met by BNC turning over that amount to Cuba.

Mr Dudnikov KC was, however, in my view correct to say that there was no sum of £375,000 which can be regarded as ‘set aside’. All that there is, is the possibility of a further application for an interim payment by BNC, which is a separate entity from Cuba. I do not consider that that possibility gives a good ground for making anything other than a conventional order, that is that CRF shall make the payment of £300,000 as set out above, to Cuba within 21 days of the date of the order herein.