“3. Although there is a considerable amount of authority on the question as to the date from which interest should run which was recently reviewed by Langley J in Kuwait Airways Corporation v Kuwait Insurance Co. [2000] LIRLR 678, the most helpful guidance is to be found in the judgment of Robert Goff J in BP Exploration Co. (Libya) Limited v Hunt (No 2)[1979] 1WLR 783 . The passage at p 846, as Mr Justice Langley rightly observed, is not only a clear statement of principle but one which has stood the test of time and reconciled the applicable principles: “…. interest will generally run from the date of accrual of the cause of action in respect of money then due or loss which then accrues; and in respect of loss which accrues at a date between accrual of the cause of action and judgment, from such date. For convenience, I shall refer to these dates compendiously as the “date of loss”, although I recognise that the term is not altogether appropriate in a case of restitution…..But the power to award interest is discretionary, and there is certainly no rule that interest will invariably run from the date of loss. It is no part of my task to attempt to define the circumstance in which the court will depart from the fundamental principle; indeed, since the discretion to award interest is unfettered, it would be improper to do so. There appear, however, to be three main groups of cases in which, in the exercise of its discretion, the court may depart from the fundamental principle. ” 4. Robert Goff J then considered the three groups of cases. Only the first is relevant to this issue. He said: “The first group of cases concerns the position of the defendant. The court may consider, in the light of all the circumstances, that his position was such that it would not be just to make the defendant pay interest from the date of loss. It may do so if, for example, the circumstances were such that the defendant neither knew, nor reasonably could have been expected to know, that the plaintiff was likely to make a claim, and so was in no position either to tender payment, or even to make provision for payment if the money should be found due. In such a case, the court may in its discretion only grant interest from the date of the plaintiff’s claim, or even from such a date as will allow reasonable investigation of the claim. Again, to quote from Lord Wilberforce’s speech in the Firestone case, at page 836: “In a commercial setting, it would be proper to take account of the manner in which and the time at which persons acting honestly and reasonably would pay”” 5. Robert Goff J then concluded: “The basic principle is, however, that interest will be awarded from the date of loss. Furthermore, the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been given will not generally preclude such an award. Thus, in Admiralty, in collision cases where the ship is totally lost, interest has been held to run from the date of the loss (see eg The Berwickshire [1950] P.204 and Owners of Leisbosch Dredger v Owners of SS Edison [1933] A.C. 449, 468) and in the case of a salvage award, from the date of the rendering of the salvage services: see The Aldora [1975] Q.B. 748. There must have been many cases in the commercial court in which, although the quantum of damages was in doubt until the date of the judgment, interest was awarded from the date of loss.” 6. I therefore turn to apply these principles to the present claim. The first question is to determine when the sum became due under the policy. As a matter of technical and legal analysis, I accept an insurer is in breach in failing to pay the assured the sum due under the policy at the date of the loss. I agree with the view of Mance J in Insurance Corporation of the Channel Islands v McHugh [1997] LIRLR 94 at 137, where he said that insurance contracts are treated in law as contracts to hold the insured harmless against liability or the loss insured against; therefore insurers are in the absence of contrary provision in breach of contract as soon as the insured liability or loss occurs. 7. However, although the date of the loss is when the sum became due under the policy, it does not follow that the court awards interest in every case from the date of the loss. For example in the Popi M[1984] 2 Lloyd’s Rep 555 the assured put forward a claim on a basis substantially different to that which proved successful at trial. The trial judge (Bingham J) awarded interest from a period about 4 years and 4 months after the loss. The Court of Appeal awarded interest commencing 2 years after the date of the loss; Sir John Donaldson M.R. (with whom O’Connor LJ agreed) considered that the case was unusual and underwriters therefore needed time to make up their minds. May LJ, though not differing from the other judges in the result, expressed the view that although in most cases insurers would need to investigate claims, prima facie interest ought to be awarded from the date of the loss. Another example is McLean Enterprises v Ecclesiastical Insurance[1986] 2 Lloyd’s Rep 216 , where interest was awarded by the trial judge (Staughton J) from a date some 5 weeks after the loss. In Kuwait Airways Corporation (to which I have referred) the loss occurred shortly after the invasion of Kuwait by Iraq on2 August 1990 , but interest was only awarded from5 December 1990 ; the judge found that it was not clear that until12 November 1990 that a claim in respect of loss of spares was being pursued and insurers needed a little time to appreciate that fact and consider the claim. 8. The decisions to which I have referred are but examples common in the experience of the Commercial Court in relation to insurance claims in unusual cases or those that are not straightforward. In such cases, the court usually exercises its discretion on the basis it is proper to allow insurers some time to consider the claim. The time varies accordingly to the nature of the loss, the way the claim is presented and the circumstances that require investigation. In many cases the time may be quite short. The court will always have regard to the particular circumstances specific to that claim. “…. interest will generally run from the date of accrual of the cause of action in respect of money then due or loss which then accrues; and in respect of loss which accrues at a date between accrual of the cause of action and judgment, from such date. For convenience, I shall refer to these dates compendiously as the “date of loss”, although I recognise that the term is not altogether appropriate in a case of restitution…..But the power to award interest is discretionary, and there is certainly no rule that interest will invariably run from the date of loss. It is no part of my task to attempt to define the circumstance in which the court will depart from the fundamental principle; indeed, since the discretion to award interest is unfettered, it would be improper to do so. There appear, however, to be three main groups of cases in which, in the exercise of its discretion, the court may depart from the fundamental principle. ” “The first group of cases concerns the position of the defendant. The court may consider, in the light of all the circumstances, that his position was such that it would not be just to make the defendant pay interest from the date of loss. It may do so if, for example, the circumstances were such that the defendant neither knew, nor reasonably could have been expected to know, that the plaintiff was likely to make a claim, and so was in no position either to tender payment, or even to make provision for payment if the money should be found due. In such a case, the court may in its discretion only grant interest from the date of the plaintiff’s claim, or even from such a date as will allow reasonable investigation of the claim. Again, to quote from Lord Wilberforce’s speech in the Firestone case, at page 836: “In a commercial setting, it would be proper to take account of the manner in which and the time at which persons acting honestly and reasonably would pay”” “The basic principle is, however, that interest will be awarded from the date of loss. Furthermore, the mere fact that it is impossible for the defendant to quantify the sum due until judgment has been given will not generally preclude such an award. Thus, in Admiralty, in collision cases where the ship is totally lost, interest has been held to run from the date of the loss (see eg The Berwickshire [1950] P.204 and Owners of Leisbosch Dredger v Owners of SS Edison [1933] A.C. 449, 468) and in the case of a salvage award, from the date of the rendering of the salvage services: see The Aldora [1975] Q.B. 748. There must have been many cases in the commercial court in which, although the quantum of damages was in doubt until the date of the judgment, interest was awarded from the date of loss.”
“[14] There are some contexts (for example which side of the road to drive on) when the existence of a clear default rule is important, even if there is much which can be said for both competing options. I am satisfied that the default interest rate for US$ awards in the Commercial Court going forward should be US Prime, irrespective of whether the claimant has a US place of operations or not and irrespective of whether the claim is a maritime claim or not. I have reached that conclusion for the following reasons: i) There are long-standing decisions of the Commercial Court which have referred to US Prime as a starting point for US$ awards: see [4]-[7]. That practice is referred to in Civil Procedure §16AI.2. ii) LIBOR is in the course of being discontinued. iii) LIBOR itself is an interbank rate, rather than a commercial borrowing rate. iv) The trend of the more recent authorities has been to favour the use of US Prime. v) A default rule would not achieve the requisite clarity if it did not apply to particular commercial sectors of indeterminate scope. [15] There being no contrary evidence in this case, the starting point will be US Prime. The uplift [16] As its name indicates, US Prime is the rate offered by US banks to their most creditworthy business customers. In these circumstances, it would not be appropriate to have a default rule that there will always be an uplift over and above US Prime in an interest award. In some cases, even without evidence, it will be obvious from the general characteristics of the claimant that it would have to pay a higher rate to borrow US$ than a bank’s most creditworthy customers. In such cases, the court may well be persuaded to order interest at US Prime plus 1% or US Prime plus 2% for certain types of claimant. Higher uplifts than that are likely to require evidence to justify them.”
“29. There was no significant dispute as to the general principles relevant to liability for costs, which is not, perhaps, surprising because there is something in them for everyone. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR r.44.2 (2)), but the Court may make a different order having regard to all the circumstances. First instance judges have been warned against departing too readily from the starting point that the successful party gets its costs (Fox v Foundation Piling Ltd[2011] EWCA Civ 790 , [2011] 6 Costs LR 961, [62],), although I accept that such orders are not to be described as exceptional. 30. Further: i) There is no automatic rule that the costs of a successful party will be reduced because it lost on some issues, and it has been noted that in complex litigation, it is a rare party who succeeds on every point it argues (see e.g., Travellers' Casualty and Surety Co of Canada v Sun Life Assurance[2006] EWHC 2885 (Comm) , [12] and F&C Alternative Investments (Holdings) Ltd v Barthelemy[2011] EWHC 2807 (Ch) , [2012] Bus LR 891, [16]-[21],). ii) There are various factors which are likely to weigh in the balance when determining whether to make such an order, although these are inevitably matters of weight rather than independently determinative considerations. The more significant and self-contained the issue on which the successful party has lost, the more likely it is that some downwards costs adjustment for that failure is appropriate. Failure on an argument which was simply an alternative route to the same substantive relief as that obtained may provide a less compelling case for a downwards adjustment than (for example) a party who seeks to recover some further relief and fails. The unreasonableness of taking the unsuccessful point is also a relevant consideration, but that does not mean that an adjustment to the costs order to reflect the successful party's failure is only appropriate if it has acted unreasonably in relation to the points on which it lost. Similarly, the character of the point - for example an unsuccessful claim in fraud – may also weigh in favour of a reduced costs award to the successful party. iii) Where an issue-based (or, perhaps more accurately in the present context, issue-influenced) costs order is appropriate, a judge should hesitate before making an order by reference to the costs of the specific issue, as opposed to a proportionate reduction in the successful party's costs: see [23]. iv) In those cases in which it is appropriate to depart from the general rule, a further issue arises as to whether the court should stop at depriving the successful party of part of its costs or go further and make the successful party pay part of the costs of the other party (R (Viridor Waste Management Ltd and ors) v Revenue and Customs Commissioners[2016] EWHC 2502 (Admin) , [2016] 5 Costs LR 965, [7]). This will only be appropriate in a suitably exceptional case and is to be regarded as far from routine (ibid, [19] and Summit Property Ltd v Pitmans[2001] EWCA Civ 2020 , [17]). v) While I was referred to no authority on this issue, it is frequently the case that a party raises an alternative case which the Court does not need to decide (and does not decide) because of the way in which other issues are determined. In those circumstances, unless the decision to pursue the alternative argument was unreasonable, the fact that there has been no decision on the merits of the point will not preclude the successful party from recovering those costs.”
“[22] There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant's costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed. [23] The court has a wide discretion over costs, and even where a claimant reasonably brings proceedings against two separate defendants and succeeds against one and fails against the other, there is no rule of law compelling the court to make a Bullock or Sanderson order (see Hong v A&R Brown Ltd[1948] 1 KB 515 ). That case demonstrates that the court must also consider whether it would work injustice on an unsuccessful defendant to make him liable for the costs of another defendant against whom the claimant has failed. [24] The circumstances in which the court makes such an order are stated in the White Book 2004, paragraph 44.3.8, as follows: “Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant's costs.” [25] I stress the words “in the alternative”
“A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other.” [28] Mr Featherby sought to distinguish this case on the basis that the first defendant had not sought to put the blame on the second defendant; but, as is apparent from the passage which I have cited, that is only a difference in fact and the reasoning of this court did not depend on that. [29] I do not say that this factor is necessarily determinative, but it is a relevant consideration. The judge was of course fully aware in the present cause of what was the cause of action on which the claimant had succeeded and on what causes of action the claimant had failed. [30] An important consideration which the court should have in mind when exercising the discretion whether to make a Bullock or Sanderson order is the reasonableness of the claimant's conduct in joining and pursuing a claim against the defendant against whom the claimant did not succeed. The case of Besterman v British Motor Cab Company Ltd[1914] 3 KB 181 provides the classic example of when it is appropriate to make the order. The plaintiff was injured in a collision between a taxi and a bus and did not know which was at fault, and sued the owner of the taxi as well as the owner of the bus. [31] A significant factor is likely to be whether one defendant puts the blame on another defendant. But as Mr Featherby rightly conceded, the fact that one defendant blames another does not in itself make the joinder of the other reasonable. It must depend on the facts available to the claimant, and in particular whether the claimant can sustain a claim against the other defendant. Defendants frequently blame others when things go wrong, but it does not follow that the claimant is thereby given liberty to sue the others at the expense of the defendant against whom the claimant succeeds.” “Where a claimant sues two defendants in the alternative and succeeds against only one, the court has a discretion to order the unsuccessful defendant to pay the successful defendant's costs.” “A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other.”
“19. The starting point must be to identify the proper approach to PTA in this sort of case. There are a number of particular points to be made, none of which were addressed in the appellants’ skeleton argument. 20. First, appeals on the judge’s fact finding will not generally be entertained by this court save in limited and well-defined circumstances. As Lewison LJ put it in Fage UK Limited & Another v Chobani UK Limited & Another[2014] EWCA Civ 5 , “the trial is not a dress rehearsal. It is the first and last night of the show. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. In making his decision a trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellant court will only be island hopping.”
“76. So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’”. 22. Thirdly, one of the reasons for the length of time of this trial was the amount of expert evidence. The judge made copious references to that expert evidence in her judgment. In Thompson v Christie Manson & Woods Limited & others[2005] EWCA Civ 555 , May LJ warned that, since the evaluation of expert evidence was likely to be bound up with a wider evaluation of matters of fact, an appellate court will be very slow to intervene in findings based on expert evidence. So he said that, whilst individual points may be amenable to appellate evaluation, “no appellate court should cherry pick a few such points so as to disagree with a composite first instance decision which, in the nature of a jigsaw, depended on the interlocking of a very large number of individual pieces, each the subject of expert evidence that the appellate court has not heard.”
“17. In those circumstances, I consider that the applicable principles can be summarised as follows: i) The CPR provides a single test for applications for permission to appeal which covers the entirety of the High Court, including the TCC (Virgin Management). ii) Any application for permission to appeal on matters of fact or evaluations of expert evidence must surmount the high hurdle identified in Fage, Henderson, Thomson and Grizzly Business. iii) In addition, because a judgment in the TCC is likely to involve i) detailed findings of fact in an area of specialist expertise (Virgin Management and Skanska) and/or ii) lengthy and interlocking assessments of both factual and expert evidence (Skanska and Thomson) and/or iii) factual minutiae which is difficult or impossible sensibly to reconsider on appeal (Skanska), the Court of Appeal will be reluctant to unpick such a judgment (Thomson), with the inevitable result that obtaining permission to appeal on such matters in a TCC case may be harder than in other, non-specialist types of case (Virgin Management, Skanska and Yorkshire Water).” 24. Fifthly, it is rare that an appeal court will be faced with – let alone grant – such a ‘kitchen sink’ application for PTA as this one, where every adverse finding is in issue. The applicants have had every opportunity to slim down their application, or to focus on the fundamental points of principle which they assert arise in this case. They have politely but firmly declined to take that course. Thus it is for the court to consider this application as a whole, in circumstances where many of the individual grounds are, bluntly, hopeless. 25. I consider these five separate but overlapping points inevitably combine to demonstrate the height of the hurdle that the applicants need to surmount in this case in order to obtain PTA. They all point very firmly away from granting PTA. I refer to these five points collectively below as “the particularly high permission hurdle in this case.”” “76. So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’”. “17. In those circumstances, I consider that the applicable principles can be summarised as follows: i) The CPR provides a single test for applications for permission to appeal which covers the entirety of the High Court, including the TCC (Virgin Management). ii) Any application for permission to appeal on matters of fact or evaluations of expert evidence must surmount the high hurdle identified in Fage, Henderson, Thomson and Grizzly Business. iii) In addition, because a judgment in the TCC is likely to involve i) detailed findings of fact in an area of specialist expertise (Virgin Management and Skanska) and/or ii) lengthy and interlocking assessments of both factual and expert evidence (Skanska and Thomson) and/or iii) factual minutiae which is difficult or impossible sensibly to reconsider on appeal (Skanska), the Court of Appeal will be reluctant to unpick such a judgment (Thomson), with the inevitable result that obtaining permission to appeal on such matters in a TCC case may be harder than in other, non-specialist types of case (Virgin Management, Skanska and Yorkshire Water).”