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

This is a further short judgment the possibility of which was foreshadowed in a previous judgment following a hearing on 13 May 2025 (‘the First Hearing’) reported at [2025] EWHC 1238 (TCC). The Defendant, Accor HotelServices UK Limited (‘Accor’), applied for security for costs to be paid into Court. It was determined that the Claimant, Lloyds Developments Limited (‘Lloyds’), could, in principle, provide security by way of an ATE (‘After the Event’) insurance policy instead of a payment into Court. Accor sought further security in the sum of £1,162,336. The total further security to be given was ordered to be £882,336.

Paragraphs 5 to 15 of the earlier judgment set out the chronology leading to the First Hearing, and it was concluded that Lloyds had been deprived of the opportunity of (at least potentially) providing a policy which met any legitimate concerns raised by Accor because of Accor’s failure to engage in any substantive communications in advance of the hearing. As a result of this, although I considered that there were two remaining areas of concern such that I was not prepared to order that ATE Insurance in line with the draft policy then being debated, I permitted 10 days in which Lloyds could address those points and provide a satisfactory policy. Accor complain of delays on the part of Lloyds in providing further proposed policies; Lloyds complain that Accor have identified new and additional grounds upon which to assert that the ATE Insurance policy was not suitable. Lloyds made various changes in the face of further points without prejudice to their position that they were not necessary/not permissible in light of the remaining issues following the First Hearing. The policy wording before the Court by 25 July 2025 (‘the Second Hearing’) was in its seventh iteration (the third iteration being a version served following the First Hearing). The parties were unable to reach agreement on a final, acceptable policy wording, and there remained the question of reserved and further incurred costs.

At the Second Hearing, I determined the final wording of a policy with Anti-Avoidance Endorsement (‘AAE’) which would be suitable, to the Court, for provision in lieu of a payment during the course of the Second Hearing, giving brief reasons orally. I indicated that I would, in addition, provide a short written judgment appending the acceptable policy, given its potential interest to the relevant industry. The approved policy (with financial information redacted) is set out at Appendix A. I reserved the question of costs, providing for short further submissions relating to quantum.