HT-2021-000363 - [2025] EWHC 998 (TCC)

Fecha: 24-Abr-2025

Basis of assessment

iii)

Basis of assessment

52.

The Claimant seeks an order that its costs should be subject to a detailed assessment on the indemnity basis relying on the following factors:

The Defendants deliberately concealed the facts giving rise to this claim over a decade of development of the SDM from around 2013.

ii)

The Second Defendant’s failure to comply with the Claimant’s audit request was improper (a breach of the ICA) and resulted in the scope of disclosure and the factual investigations in the case being unnecessarily onerous and extensive in scale.

iii)

The nature and extent of the underlying wrongdoing which brought about the need for these proceedings included (i) breaches which were found to be deliberate and “systematic and widespread”: see Judgment [914]; (ii) an unlawful means conspiracy between the Defendants; and (iii) conduct which formed part of a pattern of behaviour on the part of Mr Moores and his companies against IBM.

iv)

The Defendants consistently sought to frustrate the disclosure of documents which would reveal their breaches.

The Defendants adopted an attritional and scorched earth approach to these proceedings, with the Defendants contesting every conceivable point, however unmeritorious.

vi)

As against Mr Moores, the Court is invited to have regard to his (double) deletion of emails within his Gmail account, which (although not addressed in the Judgment) was addressed in the Claimant’s written closing at section F2 and is in the Claimant’s submission relevant to the question of costs.

53.

The Court retains a wide discretion to order costs to be assessed on the indemnity basis, where the conduct of the relevant party is unreasonable to a high degree or otherwise out of the norm: Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspeden & Johnson [2002] EWCA Civ 879 per Lord Woolf LCJ at [31] and Waller LJ at [34]-[39].

54.

In this case, the first three factors relied on by the Claimant simply concern the basis for the Defendants’ underlying liability. Although the court has found against the First, Second and Sixth Defendants, including deliberate concealment, audit failure and multiple breaches of the ICA, most of the arguments deployed in defence could not be said to be so unreasonable as to take the Defendants’ conduct outside the norm. The last three factors relied on by the Claimant concern the approach taken by the Defendants to the litigation. This was hard-fought, technically complex litigation, in which numerous points were taken on both sides, both sides were critical of the other’s disclosure and every point was argued to the bitter end. Against that backdrop, it would not be fair to penalise one side over the other and I do not consider that an indemnity basis of costs is appropriate.