Matrix Receivables Limited v Musst Holdings Limited [2025] EWHC 3204 (Ch)

[2025] EWHC 3204 (Ch)Case No BL-2020-001417IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESBUSINESS LIST (Ch D)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 05/12/2025
Before
The Hon. Sir Clive Freedman(Sitting as a Deputy Judge of the High Court)
Between
MATRIX RECEIVABLES LIMITEDClaimantMUSST HOLDINGS LIMITEDDefendant
Mr Jonathan Adkin KC (instructed by Mills & Reeve LLP) for ClaimantMr Peter Knox KC and Ms Katharine Bailey (instructed by Taylor Wessing LLP) for DefendantHearing Hearing date: 4 November 2025Further evidence and submissions and correspondence: 11, 14 and 19 November 2025
Approved JudgmentThis judgment was handed down remotely at 12noon on Friday 5 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

SIR CLIVE FREEDMAN:

[1]This is a consequential judgment to the judgment neutral citation number [2025] EWHC 2487 (Ch). There was a consequentials hearing on 4 November 2025 and judgment was reserved among other reasons in order to receive further evidence from Musst in respect of an application for a stay. The parties asked for this judgment to be postponed pending agreement of terms of an application of Musst for a stay which occurred on 19 November 2025. They also indicated that a transcript of the hearing of 4 November 2025 was being obtained: that had not been sought by the Court, but it was provided thereafter in order to assist the Court.[2]The result of the case was that judgment was given for Matrix which the parties accept as a matter of calculation only is a sum of £175,380.76 plus interest in respect of a part of its claim for unjust enrichment in respect of a share of management fees received by Musst arising out of introductions to Astra of customers, namely 2B and Crown. An alternative claim in contract was dismissed. A much larger claim for unjust enrichment in respect of a share of performance fees in respect of the introduction of the same customers was dismissed. An alternative claim in contract was dismissed.[3]This consequential judgment will consider the following issues, namely:(i) interest in the judgment debt;(ii) permission to appeal;(iii) costs; and(iv) stay of execution.

II Interest

[4]An application was made for interest pursuant to section 35A of the Senior Courts Act 1981. It is accepted that this is discretionary both as regards the period of interest and the amount of interest. There are two periods to consider, namely:(i) the period from the time of the payments of the management fees prior to the assignment or the commencement of proceedings (“the First Period”);(ii) the period from the assignment or the commencement of proceedings until judgment (“the Second Period”).[5]As regards the First Period, no claim whether in contract or unjust enrichment was made brought after the end of the First Period. On the premise that there was no contract, this was a claim for unjust enrichment where the claim was less obvious than in the case of, for example, instalments payable under a contract. Any entitlement and its quantum did not arise for obvious consideration until the claim was intimated. The assignor of the claim, that is MMM, had ceased to trade in November 2012.[6]The delay in MMM not pursuing a claim and in Matrix/Mr Reeves not procuring an assignment earlier and in not intimating a claim for such a long period has not been justified. Unlike in a contract claim, no sensible criticism can be made of Musst for failing to search out MMM. In the circumstances, no interest should be awarded for the First Period. There is no injustice because there was no justification for the delay.[7]As regards the Second Period, I conclude from the time when the action was brought that interest should be paid. I accept the submission that the default position in respect of a US dollar claim is that interest should be at the Prime Interest rate, even where the parties are based in the UK. This has been clarified by Foxton J (as he then was) in Lonestar Communications Corporation v Kaye & Ors [2023] EWHC 421[8]The US prime interest rate is often higher than the Bank of England base rate. In some instances, there is added 1 or 2% over the US prime interest rate to reflect the commercial cost of borrowing. In this case, there is no indication that a business was kept out of money. The court will treat as sufficient the US prime interest rate from time to time. Interest at that rate without an uplift is ordered on the judgment sum to be paid from the commencement of proceedings to judgment. III Permission to appeal.[9]It is only Musst which seeks permission to appeal. Matrix may seek permission to cross appeal, but only if permission is granted. The sole ground of appeal of Musst is that the Court ought to have found that the entirety of the claim was statute barred from April 2019 or November 2019, that is six years after the agreement was made between Musst and Astra or after the first payment of the management fees. The argument is that at that point there crystallised an enrichment for the purpose of running of time. That is to say that there was a contractual right to receive a share of the management fees or performance fees, irrespective of when they were actually received by Musst.[10]The judgment made the distinction between the provision of services and the end product of the services. There was set out in detail in the judgment at J/109 – J/122 that the enrichment depended on the occurrence of contingencies. In the instant case, that depended upon payment being received by Musst from Astra.[11]This is not a claim for an account. It is a claim based on enrichment. The enrichment occurred at different times. This analysis has been central to the basis on which Musst succeeded in its defence for the claim in respect of a share of the performance fees.[12]It was at the heart of the rejection of the claim for performance fees that this did not accrue on the provision of services or the entitlement of Musst against Astra. This being an end product case, the litigation was required in order for the enrichment to take place. That involved the claim against Astra being fought and brought and the concomitant expense and risk to Musst and its shareholders to bring about the enrichment.[13]Just as the enrichment did not arise until the money was received in respect of the performance fees case, so too in respect of the management fees. Thus, there is rejected the notion that the future entitlement to management fees was a benefit before the moneys were received. There was not a benefit until receipt of the moneys. If Astra had become insolvent and/or refused to pay, there would have been no benefit until payment was received by Musst. There was no single cause of action or single enrichment. Instead, every time Musst received money from Astra, there was a further enrichment. Hence, the conclusion that the receipts prior to 4 September 2014 were statute barred, but the receipts thereafter were not statute barred.[14]There is no argument with a real prospect of success that an expectation that management fees sufficed for the accrual of the cause of action. The first formulation of Musst is that the accrual was at the time of the agreement between Musst and Astra in April 2013: it did not arise at that stage. There may have been no payment made by 2B or Crown to Astra, nor by Astra to Musst. The second formulation of Musst is that the accrual was at the time of the payment of the first management fee in November 2013: it did not arise at that stage save in respect of the share of the management which was received. There may have been no subsequent payments made by 2B or Crown to Astra. In each case, mere expectations were not the touchstone. The enrichment occurred when Musst received the various moneys.[15]The case turns on its own facts, and there is no point of principle. In these circumstances, an appeal has no real prospect of success and there is no other compelling reason for an appeal to be heard.

IV Costs

(a) The argument of Matrix

[16]Matrix says that it was the successful party. It invokes the test used in very many commercial cases of identifying the party who is to pay money to the other: see the formulation of Longmore LJ in AL Barnes v Time Talk [2003] EWCA Civ 402 at [28] who said:
“In what may generally be called commercial litigation… the disputes are ultimately about money. In deciding who is the successful party the most important thing is to identify the party is to pay money to the other. That is the surest indicator of success and failure.”
[17]This approach was supported by Ward LJ in Day v Day [2006] EWCA Civ 415 who referred at [17] to the question of who was the unsuccessful party being easily determined in a case “by deciding who has to write the cheque at the end of the case”. In NorthamptonRegional Livestock Centre Co Ltd v Cowling and Lawrence [2015] EWCA Civ 651, Tomlinson LJ referred with approval [at 110] to the statement of Longmore LJ in AL Barnes v Time Talk as the surest indication of success being who has to pay money with approval.[18]In Fox v Foundation Piling Ltd [2011] EWCA Civ 790, in a case where there was a concession by the defendant that the claimant was the successful party, Jackson LJ said:
“[62] There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in Rule 44 point 3(2)(a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to parties and at huge cost to other little it's because of the uncertainty which such an approach generates...” [63] “… In the context of personal injury litigation where the claimant has a strong case on liability but quantum is inflated, the defendant’s remedies to make a modest Part 36 offer. If the defendant fails to make a sufficient Part 36 offer at the first opportunity, it cannot expect to secure cost protection...”
[19]In Global Energy Horizons v Gray [2021] Costs LR 133, the claimant recovered about £3.6 million which was about 1.6% of the highest at which the claim was put. Allowing an appeal against no order for costs, the Court of Appeal held at [8]:
“where a defendant is faced with an exorbitant claim which he wishes to defend vigorously but where he is vulnerable to finding that he is liable for a much smaller amount, there is a clear process provided by CPR 36 which he can follow to protect his position.”
[20]In Cook on Costs (2025) at para. 22.17, the authors suggest that:
“For our part, we prefer the A L Barnes, Day and Fox approach. At a time when the court has no desire or resource for further rounds of the 'costs wars', it has the virtue of clarity and simplicity (a point made by the Court of Appeal recently in Taylor v Jones [2024] EWCA Civ 170, when stating the approach 'produces a clear principle for trials and other litigation at first instance'). Concerns over conduct, partial success etc can be addressed in any event when looking at whether there are reasons to depart from this starting point…”
[21]Reference will be made below in the context of the submissions of Musst about in particular two first instance decisions where there was a willingness to consider who in reality and substance had won the case without treating the identity of the paying party as decisive. It was submitted on behalf of Matrix that to the extent that such cases were departing from the reasoning in the above cases, they should be viewed with circumspection, and even that they were wrongly decided. The primacy should be to the paying party test and any other course led to the costs wars which were to be deprecated.[22]Matrix submits that an analysis of the issues shows that if an issue-by-issue approach is undertaken, it won on most of the issues. In particular, it submits that:(i) it succeeded to the extent that it showed that it made a substantial contribution to introducing the 2B and the Crown investments, even if the larger part of the contribution was that of Musst;(ii) it succeeded in resisting the limitation defence of Musst. There was a limitation period in respect of management fees received up to 4 September 2014, but the point of principle about the entirety of the claims being barred by limitation was resisted successfully;(iii) it succeeded in resisting the wrong party defence both as regards (a) the Matrix company which made the assignment, and (b) the suggestion that there had already been an assignment of the claim to a third party.[23]Matrix also submits that the costs were not substantially increased by those areas where it did not succeed. In particular. Matrix submitted as follows:(i) as regards the contract claims, they were based on substantially the same facts and involve substantially the same disclosure and investigation as the unjust enrichment claim: see paras. 33 and 35 of the judgment on the application for summary judgment neutral citation number [2024] EWHC 1495 (Ch). To the extent that there was an increase in the costs referable to the contractual claims, this was minor, and nowhere near the alleged 40% attribution of Musst;(ii) as regards the performance fees and the determination that the chain of causation was broken, this was a self-contained analysis which did not involve any fresh evidence and very little further argument.[24]Matrix also submits that there is nothing in the conduct of the parties in the present case which warrants a departure from the general rule. There has not been a finding in the judgment that the claim was advanced on a wholly dishonest basis or that the claimant has dishonestly exaggerated the quantum of its claim.[25]Further, Matrix refers to the absence of a Calderbank offer or a Part 36 offer on the part of Musst. It points to the fact that such an offer could have been made. That is the way for a party to protect itself on costs in litigation, especially commercial litigation.

(b) The argument of Musst

[26]Musst says that it was the successful party. It relies on the decision of the Court of Appeal of Medway Primary Care Trust v Marcus [2011] EWCA Civ 750 in which Tomlinson LJ said at [46]: “The starting point of the enquiry is as all accept to identify the successful party. Although there have been many attempts to describe this surprisingly elusive process, no description is in my view better than that of Sir Thomas Bingham MR in Roache v Newsgroup Newspapers Ltd [1998] EMLR 161:- "The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?" "The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?"[27]Musst submits that whilst the writer of the cheque test is a very good indicator and is very frequently decisive as indicating which party is successful, each case depends on its own facts.[28]The Court sought the assistance of the parties about two cases, namely:(i) Rotam Agrochemical Company Ltd and Another v GATMicroencapsulation GMBH [2018] 6 Costs LR 1365;[2018] EWHC 3006 (Comm)(ii) Hamad M Aldrees & Partners v Rotex Europé Ltd [2019] Costs LR 607; [2019] EWHC 526 (TCC). The parties duly incorporated submissions about these cases into their respective oral presentations to the Court.[29]In Rotam v GAT at [17], having referred to the case law referred to about the unsuccessful party being the party making the payment, Butcher J stated that there is no inflexible rule that the party which is to be paid is the party who has won in reality and in substance.[30]In Hamad Aldrees v Rotex, reference was made to Atlasjet Havacilik Anonim Sirketi v Kupelli [2018] EWCA Civ 1264 where the Court of Appeal (Davis and Hickinbottom LJJ) was concerned with an appeal on the question of costs. After setting out the relevant provisions of CPR 44.2, which appear under the heading “Court’s discretion as to costs”, Hickinbottom LJ, with whom Davis LJ agreed, said (at para 5) that, in relation to that rule, several points were worthy of note. He set out the following: “i) In considering orders for costs, the court is of course bound to pursue the overriding objective as set out in CPR rule 1.1, i.e. it must make an order that deals justly with the issue of costs as between the parties. Therefore, when considering whether to make a costs order – and, if so, the order it makes – the court has to make an evaluative judgment as to where justice lies on the facts and circumstances as it has found them to be. … …. 8. It is well-established that the question of who is the ‘successful party’ for CPR purposes requires a fact-specific evaluation by reference to the litigation as a whole … 9. In the context of private law claims, in Bank of Credit and Commerce International SA (In Liquidation) v Ali (No. 4) (1999) 149 NLJ 1734 (‘BCCI’), Lightman J said that: ‘For the purposes of the CPR, success is not a technical term but a result in real life, and the question as to who has succeeded is a matter for the exercise of common sense. ‘For the purposes of the CPR, success is not a technical term but a result in real life, and the question as to who has succeeded is a matter for the exercise of common sense.[31]Hickinbottom LJ then went on to refer to Medway Primary Care Trust v Marcus [2011] EWCA Civ 750, referring to limits to the party which pays the cheque test. At paras. 14 and 15, he said the following:
“14. There are, however, limits to which the ‘the payer of the cheque’ must be considered the unsuccessful party in the litigation. In Medway Primary Care Trust v Marcus [2011] EWCA Civ 750 … the claimant claimed that he had had his left leg amputated as a result of the clinical negligence of the defendant. The defendant admitted breach of duty, but denied causation. On the basis of the claimant’s case, quantum was agreed £500,000. However, the defendant succeeded on the causation issue, and the claimant was awarded only £2,000 for pain and suffering. There had been no offer on quantum by the defendant, either in Part 36 form or otherwise. The trial judge ordered the defendant to pay 50% of the claimant’s costs. The majority of the Court of Appeal (Sir John Thomas PQBD and Tomlinson LJ) considered that no rational person would have pursued proceedings to recover only £2,000, and the real claim had failed. The defendant was therefore the successful party. Nevertheless, although the absence of a Part 36 offer was not a reason for reducing the costs, it was relevant (that the) defendant had not made a Calderbank offer of a small amount, together with costs proportionate to the recovery. In the circumstances, the claimant was ordered to pay 75% of the defendant’s costs. 15. However, as an illustration of how strong the direction of money transfer may be taken to reflect success for these purposes, it is noteworthy that Jackson LJ, in a dissenting judgment in that case, found that the defendant ought to have made a Part 36 offer, and, in its absence, the claimant has succeeded in the action, so that the starting point should be that he was entitled to his costs – albeit with some considerable discount, the award of 50% made by the judge below being (in Jackson LJ’s view) ‘generous’.”
[32]In Rotam v GAT, in the judgment of Butcher J at [18-20], one of the reasons why the paying party had won was because the receiving party would not have brought the action where the costs exceeded the amount of the judgment by a large multiple. He also said that the claim in unjust enrichment which succeeded was an alternative claim to the primary claim which failed and was for a small proportion of the total claim. It was also introduced at a relatively late stage of the action. In the circumstances of the case, a suitably drafted Calderbank offer would have been refused, and it would have been a ‘mere matter of ritual’.[33]Musst makes a number of submissions to the effect that overall, Matrix is not the winner. First, it submits that the contract claims have been dismissed, and on an issue-by-issue basis, that should account for 40% of the costs of the action. It points to the fact that a third of its opening submissions (about 17 of 51 pages) were devoted to the contractual claims, which it submits gives a window as to the percentage of the case dedicated to that part of the case. It submits that the pleading of a claim in contract added significantly to the examination of documents and evidence relevant or potentially relevant to a claim in contract.[34]Second, it submits that “the juice” of the action was the performance fees part of the claim, and that has failed. In terms of the amount of money at stake, that was a large multiple of the management fees. Even if the management fees had been worth say US$500,000, that would still be a small proportion of the claim for 80% of the performance fees comprising several millions of dollars in respect of the judgment against Astra with more alleged to follow. On the basis of the judgment of about US$175,000 (before interest), the percentage of the management fees awarded of the sums claimed is less than 5% of the sums claimed.[35]Third, it submits that the amount of the costs was far larger than the management fees received or even than the claim for management fees. This is relied upon as further evidence to the effect that the action was first and foremost about the performance fees.[36]Fourth, it relies on conduct and says that the Claimant should be criticised in the following respects, namely:(i) conducting the contract claims right up to trial including contesting that part of the strike out application;(ii) the way in which Mr Reeves appeared to have been intent on spoiling the case of Musst against Astra despite the commercial irrationality of so doing in the event that there was a bona fide claim for performance fees;(iii) the delay on the part of the Claimant in not bringing the claim so that it could have been tried at the same time as the case against Astra.

(a) Introduction

[37]Whilst in very many commercial cases, the question of who is the successful party is determined by asking who pays the cheque, that is not always decisive. The ‘who pays the cheque’ test is useful because it shortens the length of disproportionate arguments about costs. It is especially useful in a case where there is a claim and there is a counterclaim.[38]That is not to say that there are not cases where the analysis may be deeper, and possibly more lengthy, than the question of which party pays the cheque. In my judgment, the ‘who pays the cheque’ test is highly relevant, but it is not the be all and end all of the analysis in this case. I do not treat any of the above cases as wrongly decided including the decisions of Hamad Aldrees v Rotex and Rotam v GAT. Each case turns on its own facts: there may be starting points, but there are no rules. It is necessary to consider carefully the facts of the instant case. (b) The claim for enrichment in performance fees and management fees contrasted.[39]Such success in this case was in respect of management fees and not in respect of performance fees. In money terms, it was in the region of about US$175,000 before interest. The total of management fees sought had been in a much larger sum. Matrix had sought 80% of the management fees received by Musst but was awarded 40% in respect of one customer and 20% in respect of another customer and reduced further because receipts prior to September 2014 were found to be statute barred. Nevertheless, the claim for management fees was successful, and there were resisted successfully arguments about the wrong party and about limitation which were intended to defeat the claim in its entirety. There were also resisted arguments about the nature and extent of the contribution of MMM, the assignor, which were intended to reduce the percentage still further.[40]The claim in respect of performance fees failed in its entirety. That was because the Court found that the chain of causation was broken in view of the absence of assistance on the part of the Claimant or MMM in respect of the claim and the litigation against Astra, and indeed with Mr Reeves aligning himself with Astra against Musst. The effect is that whatever service was provided in 2012 was eclipsed by the years of costs, risk and time in the litigation of Musst against Astra coupled with the lack of assistance, even opposition, on the part of Mr Reeves.[41]It is submitted on behalf of Matrix that the claim to performance fees did not add substantially to the time spent proving the claim. I disagree. The factual analysis which led to the determination that there was a break a chain of causation depended upon a number of matters which would not have required the same attention in the event that there had been a claim for management fees. The first aspect was an understanding that the claim in unjust enrichment was by reference to end product rather than to services. The consequence was that the conduct in the years from provision of the introductory services until receipt of performance fees by Musst came under the judicial microscope. It was necessary to contrast the initial introductory services with the nature and extent of the steps taken by Musst to make its recoveries against Astra.[42]That was not the end of the matter. It was necessary also to consider in detail the conduct of Mr Reeves as a witness for and assisting Astra against Musst. This stood to be contrasted with the case of Matrix conducted coterminously with the defence of Astra, and the inconsistency of the position. That depended on an assessment of the evidence of Mr Reeves and his conduct. It was necessary in terms of finding a break of a chain of causation to see this conduct in the context of the findings of the nature and extent of the introductory services. This was a far more detailed and nuanced exercise than simply adding a little to the scope already considered in respect of management services.[43]The significance of the claim in respect of performance fees was immense. First, it was not only by reference to the performance fees so far recovered from Astra in the claim in respect of Crown and 2B. There is about to start or has started the trial of a further action between Musst and Astra claiming further performance (and possibly other) fees in relation to other Crown accounts, and the claim of Musst attached to a percentage of any further recoveries.[44]The claim for performance fees in money terms rendered the claim to management fees small or insignificant in comparison. The calculation is that the claim which succeeded was less than 5% of the claim as a whole.[45]The further point is made that the amount of costs in the instant action of Matrix is vastly more than the claim for management fees. Although a claim for US$175,000 is not insignificant, it was a small fraction of the overall costs of Matrix in this action. It did not make worthwhile the claim as a whole.[46]A related point is that in the event that the claim had been limited to a claim for management fees and had not involved a claim for performance fees, then it is very likely that the case would have been far more contained. Since it might have been a claim for about US$500,000 as opposed to a claim for millions of dollars, it is likely that it would have been contained in a proportionate way, that is to say no involvement of leading counsel and other senior lawyers and confined to say 3 days rather than 7 days. The overall costs incurred therefore would have been far less.[47]One characterisation of the action is that this was a claim for the share of performance fees, being what was referred to as “the juice” of the action. On this basis, the management fees were very much secondary to the performance fees. On this analysis, a test other than the paying party test might lead to a different analysis of which was the successful party.[48]Another way of looking at the matter is that whilst the judgment in respect of the management fees was not trivial, it did not justify either the making of the claim relative to the costs incurred or the way in which the case was followed involving silks and a 7-day trial. If it had been identified as simply a claim to a proportion of the management fees even comprising rather more than was ordered, then a large part of the costs of the action would not have been incurred.

(c) The claims in contract

[49]There is an issue between the parties relevant to the decision about the incidence of costs as to whether the claim in contract can be separated out such as, in the submission of Musst, to attribute 40% of the costs of the action to the contract claims. I accept the submission that it is extremely difficult to make an apportionment. On the one hand, they were based on substantially the same or similar facts and involve substantially the same disclosure and investigation as the unjust enrichment claim as set out above.[50]On the other hand, the claims required separate analysis. It was critical to examine the documents and to prepare the evidence for trial mindful of the possibility that something might give rise to an agreement, whether express or implied term. It is not surprising that the opening of Musst for trial that one third of the document was devoted to the different formulations of the contract claims. If the contract claims had succeeded on the formulation of an 80% entitlement for MMM, the result of the case would have been very different.[51]Since, the contract claims did overlap to a large extent with the unjust enrichment claim in terms of subject matter, an issue-based costs analysis would be very difficult. Assume that the order was that the costs of the contract issue should be paid by Matrix to Musst, but that a percentage of the unjust enrichment issue should be paid by Musst to Matrix, a costs judge would find it very difficult to make the apportionment. Even as the trial judge, I would find it very difficult to make that apportionment. The reasons for that difficulty include the fact that as the judge, I have not seen the underlying work and disclosure in the preparation of the contract claims. At an early stage during the trial, it almost vanished. That does not mean that it did not comprise a substantial part of the preparation at the pleadings or disclosure stage, and I have already commented about the fact that it comprised one third of the analysis of the opening skeleton of Musst at trial.[52]There is a similarity with the Rotam v GAT case to the extent that that case involved a claim in contract and an alternative claim in unjust enrichment. Each case turns on their own facts. In Rotam, the point was more powerful because the claim in unjust enrichment was very much secondary and was for a small percentage of the contractual claims: it was also added by way of amendment almost as an afterthought long after the commencement of the action. In the instant case, the unjust enrichment claim is far less secondary: it was there from the start and as pleaded it was capable of being the same amount as the contract claims. Nevertheless, it was an alternative claim to the contract claims which failed.[53]Further, the contract claims were claims which were at best very weak. They were in all but name discontinued in the course of the trial. This was only done so expressly at the end of the trial, but it was obvious from the opening of Matrix that they were barely maintained. Matrix continued to maintain the contract claims until the trial and resisted the strike out application. It was not struck out because of the overlap with the unjust enrichment claim, but it might have cast a different light if the court had known that without more, it would be virtually abandoned by Matrix by the time of the trial. In my judgment, it is a matter of conduct that the contract claims were not abandoned. They should have been abandoned far earlier than was the case, at latest well in advance of the trial. There has not been an explanation why they were not abandoned much earlier.[54]In these circumstances, it is not appropriate to make an issue-based order in respect of the costs of the contract claims. It is appropriate to bear it in mind in the determination of the overall order as to costs, and to make a significant adjustment in favour of Musst to reflect its success in respect of the contract claims and the criticisms about the conduct of Matrix in maintaining such a weak claim up to the start of the trial.

(d) Conduct

[55]In addition to reflecting conduct about the contract claims, the issue arises as to whether conduct arises in other respects. The CPR states that the Court may take into account conduct in deciding what order to make as regards costs.[56]CPR 44.2 provides as follows: “(2) If the court decides to make an order about costs –(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but(b) the court may make a different order.[57]CPR 44.4 provides as follows:
“(3) The court will also have regard to – (a) the conduct of all the parties, including in particular – (i) conduct before, as well as during, the proceedings; and (ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; (g) the place where and the circumstances in which work or any part of it was done; and (h) the receiving party’s last approved or agreed budget.”
[58]As regards the claim to a share of the management fees, I disregard the criticism that the claim was excessive or exaggerated. Significantly less was awarded than the amount claimed, but that is no different from any litigation where there is no fixed percentage agreed and the court has an evaluative exercise, and the parties’ notions may be significantly different.[59]As regards the claim to the performance fees, the mere failure of the claim by itself does not render the claim unreasonable. Nor does the mere fact that the chain of causation was broken between the services and the receipt of commission by Musst.[60]The matter which raises matters of conduct is the behaviour of Mr Reeves in the coterminous claims of Musst against Astra and of Matrix against Musst. This has been considered in some detail in the judgment. In particular, it is recounted not simply that nothing was done to assist in obtaining the performance fees, but Mr Reeves actively assisted Astra in defending the claim for performance fees brought against it by Musst. This was in the disclosure process and in the preparation of a witness statement and subsequently in giving evidence at the trial for Astra. These steps were entirely at odds with the instant action against Musst because the consequence of the assistance for Astra would, if Astra had succeeded, have been that Musst would not have received performance fees and there would have been no share of the same for Matrix. All of this is set out in detail at J/154-J170.[61]This concerns the conduct of Mr Reeves who is said to be the owner and controller of Matrix. His behaviour has been characterised in the judgment at [J/156] as having “all the hallmarks of someone who has suspended truth for his own changing interests from time to time”. He supported the evidence of Astra when on his own case, this would be adverse to the action of Matrix against Musst: see J/156-J/158. As stated at J/159 “…It suffices to say that Mr Reeves was actively giving evidence which he must have known was intended to contradict the case of Musst and thereby lead to no end-product in respect of moneys received from the performance fees.”[62]There was no explanation why two such inconsistent stories could be run. As was stated at J/160(3):
“The fact that Mr Reeves has now run a contradictory case in the instant action shows at best lack of reliability but confirms the conclusion that no credibility can attach to Mr Reeves whose evidence appears to turn with the wind.”
[63]Related to this is how Mr Reeves was in the Astra camp e.g. bringing this action and refusing to stay it such that Musst was forced to deal with the run up to trial against Astra and this case simultaneously. That was despite the fact that in the event if Mr Reeves had been committed to the instant case, he would have sought to have enhanced rather than damaged the prospects of success of Matrix against Musst.[64]The rejection of the evidence of Mr Reeves in this case follows from the rejection of his evidence in the see the judgment of 17 December 2021 in the case of Musst v Astra [2021] EWHC 3432 (Ch) especially at paras. 52 and 210 and see more generally paras. 186-233.[65]The point is made on behalf of Matrix that the rejection of evidence is commonplace and is very rarely sufficient by itself to give rise to an order for indemnity costs or as a matter of conduct to be taken into account in deciding costs. The position is contrasted with one of a finding of dishonesty. Whilst the Court has not made a finding of any conspiracy with Astra, the position is very stark and unusual. It is of Mr Reeves seeking to damage the case of Musst against Astra despite this being in fundamental contradiction of his apparent interests to recover through Matrix a percentage of the recovery of the performance fees. It is of Mr Reeves giving contradictory evidence in the action of Musst v Astra and in the instant action. It is of a finding that his “evidence appears to turn with the wind.” At no stage has there been any explanation to show how this has arisen.[66]It is not necessary to divine the motivation for this extraordinary set of events. It does not matter. This is conduct which the Court is entitled to deprecate and take it into account in respect of the costs of the action. It does not matter if the Court has taken it into account in reaching the conclusions which it has. It is not double counting to take it into account in respect of the question of costs.[67]In my judgment, it is appropriate to find that this conduct is relevant and in particular having regard to the CPR that:(i) it is conduct before as well as during the proceedings;(ii) to the extent that it relates to a different claim, it does not matter because they are intimately connected since they relate to substantially the same subject matter;(iii) it was not reasonable for Mr Reeves to be giving such fundamentally different evidence and to be running such fundamentally different cases.[68]In addition to this, the assignment from MMM was taken following massive delay which is unexplained. Mr Reeves also sought to use the claim as an instrument to impose pressure on Musst by seeking to have it consolidated with the Musst v Astra claim, thereby not presenting with Musst with adequate time to prepare to meet it or to cause the Musst v Astra claim to be postponed which would have been intolerable. Chief Master Marsh was critical about this conduct on 20 November 2020 and refused the application to consolidate. If the Matrix v Musst claim had been brought much earlier (including having an earlier assignment), then the two claims could have been heard much earlier, which in the case of Musst at least would have entailed less expense.[69]In my judgment, these are matters of conduct against Mr Reeves and through him against Matrix, to which the Court is entitled to have regard. In my judgment, they justify a significant adjustment of the overall costs order.

VI The overall result

[70]In my judgment, there are aspects of success and failure to both parties. I do treat as important the test based upon the identification of the paying party, even in a case where the paying party is only liable for a small percentage of the claim. It is a point well made that success in a sum of about US$175,000 plus interest is significant even though it is much less significant in financial terms relative to the amounts claimed and the amount spent on costs.[71]There are points well made that the Court should take into account the fact that Matrix succeeded on certain points such as(a) resisting the limitation defence (in respect of the part of the case that was found to have accrued after 4 September 2014),(b) resisting the wrong party defences, and(c) obtaining a finding that there was substantial contribution made by the efforts of Matrix before MMM went into administration in November 2012, even if it was not as substantial as the contribution claimed.[72]On the other hand, the failure of the claim in contract is important for the reasons set out above. Even if there was ever a justification for the claim in contract, it should not have been pursued all the way to trial. The virtual abandonment of the contractual claims indicates that there was nothing to it, and no reason to keep it alive. Further, Musst should not have been put to the trouble of having to prepare a case for their opening in circumstances where Matrix was virtually to abandon the contractual claims in their opening. There should have been notification to Musst so that they would not have to have prepared in this way.[73]Further, the failure of the claim for the performance fees is for reasons above of central importance in amount. It was the only sensible raison d'être for the claim being commenced or continuing, having regard to how small the claim for management fees was relative to the costs of the action as a whole. The performance fees were rightly described as the juice of the action, and it was important both in respect of Crown and 2B and in respect of the further claim of Musst against Astra.[74]It is also the case that in the event that the claim had been limited to a share of the management fees that it would have been dealt with much more quickly and that the costs incurred would have been much shorter. Further, but for the delay in obtaining the assignment and bringing the claim, it could have been dealt with at the same time as the Musst v Astra claim.[75]Whilst a Calderbank offer could have been made, Matrix made a Part 36 offer on behalf of Matrix to the effect that they would accept 25% of the commissions received both in respect of management fees and performance fees. That would have involved a judgment sum of well over US$1,000,000 and the costs of the action as a whole without any reduction. This is very far removed from the amount of the claim in respect of which there has been success and the costs order which the Court is considering. The Court cannot go on to characterise this as a mere “matter of ritual”. However, it is so far removed from the result that it cannot be assumed that the absence of a Calderbank offer at the level of the judgment would have made any difference to the conduct of the action.[76]I have come to the conclusion that despite the fact that Musst is the paying party, neither party was successful. In my judgment, it is artificial to find that one party or other is the successful party. It is both blunt and uncommercial to regard Matrix as the successful party given the failure of the contract claims and the failure of the performance fees unjust enrichment claim, which was rightly characterised as containing the juice of the claim.[77]Whilst there was some success in respect of the Claim for unjust enrichment in respect of a part of the management fees claimed, this was not on the basis of the claim in contract. Further it was for less than a half of the sums claimed in respect to the share of management fees. It was for a sum which was small relative to the costs of the claim. On the other hand, Musst was not successful in resisting the entirety of the claim for a share of the management fees. In this regard, various defences to the claim as a whole were rejected.[78]There is, therefore, no starting point as to which party should have the costs of the action. In coming to that conclusion, I reject the submissions of both parties that they respectively were successful. I have taken into account the fact that the judgment has resulted in an obligation on the part of Musst to make a payment to Matrix, albeit comprising a small percentage of the overall sums claimed. Whilst that is an important feature, it is not on the facts of this case decisive in determining that Matrix should be treated as the successful party.[79]Even if I were wrong about that conclusion, and the effect of the payment ordered from Musst to Matrix is that Matrix is the successful party for the purpose of CPR 44.2, the matters set out above in this section of the judgment headed “overall result” and in the judgment as a whole provide sufficient reasons to depart from the general rule that the successful party should have its costs.[80]I take into account the respects in which Musst has succeeded, especially in defeating the claim for the performance fees and the contract claims. I take into account:(1) the total failure of the contract claims;(2) the fact that the contract claims were continued during the strike out application, up to and including the trial when they petered out;(3) the total failure of a claim for a share of the performance fees, which was the juice of the action, whether in contract or in unjust enrichment;(4) the partial failure of the claim for the share of the management fees so that less than one half of the claim for 80% of the receipts of management fees was successful;(5) the very small amount of the amount ordered to be payable relative to the amounts claimed in the action and relative to the costs of the action as a whole;(6) the conduct of Mr Reeves, referring to his support of Astra, despite the expectation that he would have supported Musst and with no explanation for the dichotomy between his apparent interests and his actual support;(7) the characterisation of the evidence of Mr Reeves as being of a person which has had the hallmarks of someone who has suspended the truth for his own changing interests from time to time: see paras. 60-65 above;(8) the effect on the costs of the trial if it had been confined to a relatively modest share of the management fees and without claiming a share of the performance fees;(9) the effect of not bringing the claim for such a relatively modest claim at a much earlier stage when consolidation or some other order with the Astra claim would have been practicable, which would have reduced very considerably the costs which would have been incurred.[81]In taking into consideration of all of these matters, whether from the starting point that neither party was successful or by adjustment to take into account the many points set out above, I have come to the conclusion that the just order in all of the circumstances of the case is that there should be no order as to costs.

VII Application for a stay

[82]Musst has applied for a stay of execution of the sums ordered to be paid under this judgment. Directions were given to permit Musst to adduce further evidence in support of this application, and for Matrix to be able to respond. These directions were complied with.[83]The parties have now agreed terms for the stay which were set out in the form of undertakings to be provided to the Court on 18 November 2025. It is not necessary to set out the terms in this judgment. The Court thanks the parties for their assistance, both before and after the handing down in draft of this judgment.