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

Defendants’ costs

The claims against the Third, Fourth and Fifth Defendants failed. The Defendants seek an order that the Claimant should be liable for the costs of those Defendants. That is opposed by the Claimant.

The Third Defendant is not entitled to any costs order in its favour. It was a wholly-owned subsidiary of the First Defendant, it shared its legal representation and did not put forward any separate position in its pleaded Defence, evidence or submissions from that relied on by the First, Second and Sixth Defendants. Additionally, as noted in the Judgment, the evidence and submissions in relation to the Third Defendant were sparse, indicating that negligible costs were incurred in its defence.

The Fourth and Fifth Defendants each prepared separate Defences but adopted and repeated the substantive Defences of the First to Third Defendants. They shared the same legal team and presented a common position with the other Defendants. At trial they relied on the same factual and expert evidence as the other Defendants. The Fourth and Fifth Defendants each relied on an additional, discrete defence, namely, Said v Butt, based on their role as directors in the Second Defendant, a defence on which they were successful. As successful Defendants, they do not have to share any liability for the Claimant’s costs in the litigation. However, the costs properly attributed to the Said v Butt issue would have been relatively minimal. Furthermore, they were far outweighed by the costs of the substantive issues on which findings were made against the Fourth and Fifth Defendants, including specific breaches of the ICA, unlawful procurement, unlawful means conspiracy, termination of the ICA and deliberate concealment, issues that gave rise to liability on the part of the other Defendants. In those circumstances, it would not be appropriate to make any costs order in their favour, or to deprive the Claimant of a proportion of its costs against those other Defendants.

For the avoidance of doubt, the Claimant is entitled to an order that the First, Second and Sixth Defendants shall be jointly and severally liable to pay the Claimant’s costs of the proceedings in relation to issues of liability with such costs to be subject to detailed assessment if not agreed.