В настоящей публикации рассматривается решение английского суда по конкретному спору SARPD Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120.
Из решения Апелляционного суда следуют весьма интересные выводы для оффшорных компаний, в частности, относительно обеспечения судебных издержек ответчика. Представляется, что наиболее интересным из этих выводов является то, что стороны должны обсудить, согласовать и утвердить бюджеты своих расходов по ведению судебного дела на предварительном судебном заседании, причем суд будет обязан соблюдать урегулированные таким образом бюджеты.
This is an important judgment from the Court of Appeal on security for costs and sends a clear message to any offshore company that is a claimant in English court proceedings that it will not be able to resist a request for security for costs by refusing to provide evidence of its financial standing.
A defendant may seek security for its legal costs of defending an English court action from a claimant company resident outside the jurisdiction where there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so under CPR 25.13(2)
In this case, the claimant (“SARPD”), a company incorporated in the British Virgin Islands, bought a quantity of gas oil from the defendant (“Addax”), a company incorporated in Switzerland. SARPD alleged that the gas oil did not meet the contractual specification and claimed damages or an indemnity from Addax. Addax denied that the oil did not meet the terms of the specification and also argued that, if the gas oil did not meet the contractual specification, that was the fault of Glencore Energy UK Ltd (“Glencore”) from whom it bought the oil so it brought third party proceedings under Part 20 CPR against Glencore.
During the proceedings Addax wrote to SARPD requesting security for costs on the basis that SARPD was a company outside the jurisdiction. SARPD failed to provide any financial information to Addax even when faced with an application to the court for security for costs.
In the Commercial Court, Mr Justice Andrew Smith refused the order and held that SARPD had chosen to be reticent regarding its financial position and the reason for SARPD’s reticence was that it would benefit in settlement negotiations from Addax’s doubt about whether it would recover its costs even if Addax defeated the claim. But that was no reason to suppose that SARPD could not pay the costs if it lost. The judge added that he suspected it had become the practice of the Commercial Court to order security for costs in circumstances where a company had not filed publicly available accounts, had no discernible assets and declined to reveal its financial position; but, if such practice had developed, it was not justified and he would not follow it.
The judgment of the Court of Appeal was delivered by Lord Justice Sales who said:
“We consider, with all due respect to the judge, that he was plainly wrong. If a company is given every opportunity to show that it can pay a defendant’s costs and deliberately refuses to do so there is, in our view, every reason to believe that, if and when it is required to pay a defendant’s costs, it will be unable to do so.”
There were three main points for the court to decide:
(i) reticence of the Claimant
The Court of Appeal decided that a court should take account of deliberate reticence by a claimant in providing financial information when faced with an application for security for costs in the context of the overriding objectives of the Civil Procedural Rules of dealing with a case justly and the parties’ duty to co-operate (CPR Part 1.1 and 1.3).
Lord Justice Sales went on to say that if there was a practice in the Commercial Court that security for costs is often granted against a foreign company which is not obliged to publish accounts, has no discernible assets and declines to reveal anything about its financial position, that is a practice that the Court of Appeal would uphold.
Moreover, where a company is faced with a security for costs request and fails to provide financial information it meant it was ‘not a big step’ for a court to conclude that there is reason to believe the company will be unable to meet a costs order against it.
(ii) Security for costs
PR Part 25.12 provides that ‘a defendant may apply for security for his costs’.
The Court of Appeal had to determine whether ‘his’ costs could include not only Addax’s costs but also those of the Part 20 defendant Glencore.
The Court of Appeal interpreted the words of CPR Part 25.12 widely, recognising that they could comprise a Part 20 defendant’s costs. The Court recognised that this case involved a back-to back sales contract where it was to be expected that if the buyer sued its seller, the seller would join its seller and therefore if Addax were ordered to pay Glencore’s costs, those costs would at that point become Addax’s costs.
(iii) Costs budgets
The Claimant asked the court to look behind the costs budgets when deciding the amount of the defendant’s security. The Court of Appeal noted that all three parties provided signed and certified costs budgets and these had been debated and approved at the case management conference. It would not be just and would be a disproportionate cost if a court had to go behind the settled costs budgets.
Источник: https://daviesbattersby.wordpress.com/2016/03/04/security-for-costs-2/