HT-2022-000022 - [2025] EWHC 2011 (TCC)

Each side submitted Statements of Costs for Summary Assessment for both hearings. Lloyds’ costs were £39,205.50 for the First Hearing and £51,268.00 for the Second Hearing. Accor’s costs were £42,468.00 for the First Hearing and £51,888.00 for the Second Hearing.

Mr Blackett sought Accor’s costs in respect of its application for security, contending that Accor was the successful party. It obtained security. Although this was in a lesser sum than that sought, it was in a greater sum than that offered. Whilst he acknowledged the criticism of the Court for Accor’s lack of engagement prior to the First Hearing, Mr Blackett argued that there was sufficient sanction imposed by the fact, in itself, that Lloyds had been given a further opportunity to seek to provide a suitable policy. In respect of the time spent between the First Hearing and the Second Hearing, Mr Blackett emphasized the fact that the main points of principle dividing the parties were either conceded immediately prior to the hearing, or he succeeded on at the hearing.

Mr Blackett also relied upon a wider point of principle. The starting point was that, in the usual way, security is given by way of a payment into court. That can be effected quickly and cheaply (at least from Accor’s perspective) by a Court order. As already noted, this was a case in which Lloyds’ request to provide security by way of ATE Insurance reflected a preference rather than an absolute necessity. Mr Blackett points out that if the policy proved ineffective, this would ultimately be a problem for Accor, not Lloyds. With the risk of an ineffective policy placed on the defendant, Accor had no choice but to comb through all the detail of whatever policy was presented. Mr Blackett draws an analogy with wider policy that defendants should not be required to meet the cost of claimants providing security, in line with, for example, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which changed the law so premiums paid for ATE insurance would generally no longer be recoverable as costs. Mr Blackett refers to the decision of the Court of Appeal in Infinity Distribution Ltd v The Khan Partnership LLP [2021] EWCA Civ 565, in which, citing Rowe & Ors v Ingenious Media Holdings PLC & Ors [2021] EWCA Civ 29, Nugee LJ said:

“it seems to me that where, as here, the choice is between a form of security which imposes a substantial potential extra cost on [the defendant] and one which does not, that constitutes a good reason for the Court to favour the latter unless there is evidence that it would make it difficult or impossible for [the claimant] to pursue its claim if it were required to make a payment into court. But there is no such evidence …”.

Mr Blackett argued that all the costs of correspondence and hearings about Lloyds’ various policies and their suitability or otherwise as a means of giving security for flow from Lloyds’ decision to try giving security in a complicated way.

Mr Webb KC’s principal points in response were that (a) it had succeeded in principle at the First Hearing when provision by ATE policy was objected to unsuccessfully by Accor, and which had been preceded by non-engagement by Accor in circumstances criticized by the Court; and (b) that lack of engagement meant that all the points taken in the First and Second Hearings could, had there been appropriate engagement, been resolved prior to or – if there was no agreement – determined at, the First Hearing. In these circumstances, the need for two hearings was firmly caused by Accor’s approach. Having won the ATE Insurance point in principle, Lloyds should receive its costs, reduced to some degree to reflect mixed success.