Sanlam General Insuruance Ghana Limited v Sustainable Growth Fund II SCSP SICAV-SIF [2025] EWHC 559 (Comm)

[2025] EWHC 559 (Comm)

Case No LM-2024-000256

IN THE HIGH COURT OF JUSTICE

LONDON CIRCUIT COMMERCIAL COURT (KBD)

Venue The Rolls Building, 7 Rolls Buildings, Fetter Lane

London

EC4A 1NL

Date of hearing: 14 February 2025

Before

HIS HONOUR JUDGE PELLING KC

(Sitting as a Judge of the High Court)

Between

SANLAM GENERAL INSURUANCE GHANA LIMITEDClaimant

SUSTAINABLE GROWTH FUND II SCSP SICAV-SIFDefendant

MS JUDY FU (instructed by DLA Piper UK LLP) for Claimant

THE DEFENDANT did not attend and was unrepresented

Approved Judgment

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Date 2025-02-14

[1]This is an application for either a default or summary judgment in relation to a claim for $1 million together with interest said to be due either under a promissory note or, alternatively, under a corporate counter guarantee. The defendant does not appear and is not represented, but submitted a document wrongly entitled a “Defence” – I say wrongly entitled, because a defence had already been submitted – supported by a statement of truth apparently from a Ms Wick, who purported to sign on behalf of Sustainable Growth Management GP2 SARL, acting as the general partner of the defendant, the defendant being a Luxembourg-based private equity fund.

[2]The circumstances leading to the claim are relatively straightforward. The underlying claim is concerned with some finance provided to a corporate entity called Biwater International Limited. Not all the documents are exhibited and not all of them make literal sense when read. The promissory note to which the particulars of claim refer is a promissory note, as I read it, anyway, that records a promise given to Biwater by the defendant. Insofar as it is material, the promissory note apparently reads:

“We, Sustainable Grown Fund II SP SICAV-SIF … for good and valuable consideration … hereby promise to pay the amount of $1 million upon the bridge financing for Biwater for a capital injection into the company within 45 days of the date of this note … Payment shall be made by us under this promissory note in United States Dollars free of all taxes … and without setoff …”

The promissory note goes on to assert that the obligations under the promissory note are unconditional, that the promissory note is governed by English law and purports to be signed by Ms Wick, who is described in that document as being the manager of the defendant.

[3]The promissory note, as I have explained, does not create a direct contractual obligation by the defendant to pay the claimant anything. As I understand the claimant’s case, however, the claimant was called upon to meet or guarantee certain obligations in relation to the transaction and in connection therewith a corporate counter-indemnity was provided by the defendant to the claimant. Insofar as it is material, it provides, at paragraph 1:

“In consideration of Sanlam General Insurance Ghana Limited … hereinafter known as “the beneficiary”, accepting at our request a promissory note for the principal amount of USD 1 million, a copy of which is attached, we, Sustainable Growth Fund II SCSP SICAV-SIF … hereby unconditionally give our guarantee and irrevocably agree … (b) to pay you forthwith on demand all monies and liabilities whatsoever which may from time to time be claimed or demanded by you or which you should pay or become liable to pay or suffer or incur under or by reason of our promissory note that …”

The corporate guarantee is described as being “subject to and to be construed in accordance with English law”, with all disputes being referred to the High Court in London.

[4]As will be apparent from my quotation from paragraph 1 of the counter-indemnity, the language is not at all clear as to the role of the promissory note or, indeed, whether the promissory note referred to in the body of paragraph 1 is the promissory note that I quoted from earlier. Nonetheless, there is an obligation created by the counter-indemnity which requires the defendant to make good any sums paid out because of “our promissory note”, which appears to refer clearly to the promissory note from which I quoted earlier.

[5]The position thereafter at a factual level is relatively clear. Claims were made against the guarantee issued by the claimant by reference to the obligations under the promissory note as a result of which it had to payout sums which include the $1 million claimed in these proceedings. The claimant made a formal claim in correspondence against the defendant. At no stage has the defendant denied as a matter of fact that the $1 million which is the subject of this claim is properly recoverable by the claimant against the defendant. Rather, as I will explain in a moment, what has happened is that in a series of letters signed by Ms Wick going back many months she has either expressly or impliedly acknowledged, apparently on behalf of the defendant, an obligation to make good the sums claimed in these proceedings. Despite numerous promises to pay the relevant sum, it has not been repaid and, accordingly, these proceedings were launched.

[6]The proceedings were served in Luxembourg in accordance with Luxembourg law and eventually an acknowledgment of service was filed on behalf of the defendant in which the defendant indicated an intention to defend the whole of the claim and an intention to contest jurisdiction. That document was dated 21 October 2024. Notwithstanding an indication of an intention to challenge jurisdiction, no application to challenge jurisdiction has ever been issued and the time for issuing an application for the setting aside of the claim form by reference to a jurisdictional dispute has long gone under the Civil Procedure Rules. As things stand, procedurally at least, any jurisdictional challenge is no longer available to the defendant. In any event, as I have explained, the claim is made by reference to a corporate guarantee which incorporates within it an express agreement to the effect that English law will be the governing law of the contract and the English courts will have exclusive jurisdiction in relation to claims arising under it. It follows that any attempt to rely upon jurisdiction as a defence would be no more than merely fanciful and therefore can safely be placed to one side.

[7]Notwithstanding an apparent intention to challenge jurisdiction, a document entitled “Defence form” was served with the acknowledgment of service, which said simply this:

“Sustainable Growth Fund II SCSP SICAV-SIF is not a direct or indirect owner of Biwater as stated in the claim and we believe this should be tried in a different jurisdiction.”

There is a claim, as I understand it, by the claimant against Biwater which is proceeding before the courts of Ghana. However, it has nothing to do with this claim. The defence which is set out, such as it is, aside from being inconsistent with a challenge to jurisdiction, in any event does not disclose a viable defence to the claim which has been advanced.

[8]The next step that occurred was the issue of the application now before me dated 15 November 2024. I am satisfied that has been served by reference to the certificates of service that have been filed by the solicitors acting for the claimant. The application seeks either(1) judgment in default against the defendant pursuant to CPR 12.3, alternatively,

(2) that the defendant’s defence be struck out pursuant to CPR 3.4 and/or

(3) that summary judgment be entered against the defendant pursuant to CPR rule 24.3 and costs on the basis that the defence form did not constitute a proper defence to the claim and should plainly be struck out and/or that the defendant had no reasonable prospect of defending the claim and there was no other compelling reason why the claim should proceed to trial.

[9]In the circumstances as I have outlined them, the claimant was fully entitled to seek either default judgment or, alternatively, summary judgment. Summary judgment is likely to be more beneficial to the claimant because it will result, if obtained, in a reasoned judgment which is likely to be easier to enforce in at least some foreign jurisdictions when compared to the enforcement of a default judgment. Not surprisingly, therefore, Ms Fu, who appears on behalf of the claimant, whilst acknowledging the existence of the possibility of judgment in default being entered, has premised her submissions on the assumption that the primary application is one for summary judgment. I agree with that approach.

[10]The evidence in support of the application was filed and served in the usual way and the result of the service of the application that I have just referred to was the service by the defendant of another document, this time entitled “Defence”, which contains an unambiguous statement of truth, apparently signed by Ms Wick, although it is an electronic signature. Ms Wick describes herself as signing on behalf of Sustainable Growth Management GP2 SARL, in its capacity as general partner of the defendant. The document is dated 28 November 2024.

[11]There are various points identified in this document which I need to refer to before turning to the substance of the application. At paragraph 1 there is a denial of any entitlement to the relief sought on the application. There is then an assertion that the defendant lacks legal personality and therefore is incapable of being sued in these proceedings. Then at 1.3 it is asserted:

“Furthermore, under its governing law, the defendant can only act through its general partner, which must be represented by two authorised signatories for any valid representation or legal proceedings.”

The issue concerning lack of legal personality is then developed at paragraph 2, where the point is made that the defendant is established under the laws of the Duchy of Luxembourg and it is asserted that under the legal framework governing such entities as the defendant does not possess separate legal personality, that it is an unincorporated entity and therefore the proper defendant should be the general partners of the defendant, that is to say the SARL to which I referred earlier in this judgment and not the defendant as named.

[12]Including in the evidence is an opinion filed in the form of a letter from DLA Piper’s Luxembourg office that states at paragraph 2.3 that:

“Whilst an SCSP does not have separate legal personality from its partners, an SCSP must have its own registered office and can issue legal proceedings in its own name and be sued.”

Surprisingly, there has been no formal application for permission to rely upon expert evidence in relation to this case. Nonetheless and to the extent necessary, I give permission to the claimant to rely on this letter. I note that the letter does not contain the usual certifications that are to be expected in relation to expert evidence and that would entitle me as a matter of discretion to reject the evidence. Nonetheless, in the circumstances of this case, since the letter is written by a lawyer employed in the Luxembourg office of a firm of solicitors regulated in England and Wales, I am prepared to accept the letter as a proportionate means of adducing sufficient evidence of Luxembourg law to deal with the limited issues that arise in the context of this application.

[13]In relation to the legal personality point, I am satisfied on the basis of the evidence I have referred to a moment ago that it does not give rise to a realistically arguable defence. This is an application for summary judgment. The question that has to be asked is whether there is a real prospect of success of the defendant succeeding on the defences that it asserts. Based on the evidence that it has put before the court relevant this issue, I am satisfied that the defendant does not have such a prospect of success.

[14]The more difficult point which has been the subject of most of the argument during the hearing concerns the question of whether the defendant can act only through its general partner. This is a particular difficulty which permeates much of the evidence which is relied upon in relation to this case and is also material to a lot of the correspondence that has emanated from or apparently emanated from Ms Wick.

[15]I can start with the corporate records for Sustainable Growth Management GP2 SARL (“SARL”) which, as I have explained, is the general partner for the defendant. In Article 2 of SARL’s corporate records, under the subheading “Corporate Purpose”, it is said that the “...corporate object of the company is to act as the managing general partner of …” the defendant. There are several other documents included within the papers filed in support of this application which are entirely consistent with that being the position and therefore I need not take up any further time in relation to that issue. I conclude at any rate for the purposes of this application that SARL is the general partner of the defendant.

[16]SARL’s corporate records identify Ms Wick and a Mr Michael Hammond as the partners in the SARL. There is then some material set out in relation to those individuals and then, pertinently, under the heading “Directors/Managers” and under the subheading “Statutory signature regime” there appears the following:

“The company is bound vis-à-vis third parties by (1) the sole signature of the sole manager and, if there is more than one manager (2) the joint signatures of two managers or (3) the sole signature of or the joint signature of any person to whom the signing authority has been delegated by the management board.”

The directors and managers that are identified in SARL’s corporate records are Ms Wick, Mr Hammond and a third individual, a Mr Jean Pierre Baccus.

[17]It is now necessary to return to the documents which are relied upon in support of this claim. So far as the promissory note that I referred to is concerned, that was apparently signed by Ms Wick, who is described on the face of that document as being “manager of Sustainable Growth Fund II SCSP SICAV-SIF”. That is not the signature of the general manager of the defendant but is a representation by Ms Wick that she is signing or is authorised to sign in that capacity on behalf of the defendant, although this may be unduly literalist an approach. So far as the corporate counter guarantee that is the basis of this claim is concerned, that is purportedly signed by Ms Wick “for and on behalf of …” the defendant. Again, she does not purport to sign on behalf of the general partner although again although this may be unduly literalist an approach.

[18]The point that is apparently relied on by the defendant in its “Defence” is that the defendant can only act through its general partner, but the document that is sued upon has not, on its face, been signed by or on behalf of the general partner Even if the language beneath Ms Wick’s signature is ignored or treated as being a reference to the general partner, the general partner was SARL and it was only able to sign by two authorised signatories in the absence of any relevant delegated authority.

[19]The point which was made in the end on behalf of the claimant by Ms Fu is that if one looks at the totality of the evidence there is an adequate holding out by the defendant of Ms Wick as authorised to act for and on its behalf and therefore she is to be treated as having ostensible authority sufficient to sign the contract on which reliance is placed and, to the extent it is relevant, that analysis is supported by all the documents that come afterwards that she has signed and on this evidence viewed as a whole there is no realistically arguable defence available to the defendant based on a want of authority.

[20]Ms Fu submitted forcefully that the want of authority defence was a factually unmeritorious defence which was no more than an intolerable attempt by the defendant to avoid meeting its obligations in the hope that its obligation to satisfy the requirements under the corporate counter guarantee would be overtaken by finance coming into the hands of Biwater sufficient to enable the obligation to the claimant to be discharged via that route rather than out of the funds of the defendant.

[21]Amongst other things, in support of this point, reliance was placed on several apparently unqualified acknowledgments of indebtedness, one of which was particularly drawn to my attention dated 9 April 2024. That is written on the letterhead of the defendant, is captioned “confirmation of outstanding balance” and continues:

“This is to certify that [the defendant] acknowledges an outstanding balance of $1 million owed to Sanlam General Insurance Ghana Limited as of 30 November 2023. Proposed timeline for payment 30 April 2024…”

The document is signed by Ms Wick. It is dated 9 April. Her signature is witnessed by a Mr Parek, who also dates the document 9 April. The problem, for what it is worth, is that this suffers potentially, at least, from the same difficulty as the signature of the contractual document, namely whether Ms Wick has ostensible authority to sign the document.

[22]It is necessary now to take a step back and to set out in summary form the principles which apply to the question of deciding whether ostensible authority has been sufficiently established to permit summary judgment to be entered. So far as that is concerned, Ms Fu submits that this is a question which depends upon English law. She submits that is so because of the contractual provision within the counter guarantee which makes English law the governing law of that agreement. I question that because the question is one of authority, which will usually be a matter for the law of the country of incorporation of the entity in respect of which the authority issue arises. Generally only contract specific issues such as ratification will be matters of English law. However, I am prepared to proceed on the basis that even if the question is one of Luxembourg law rather than English law, I should treat Luxembourg law as being the same as English law in the absence of any evidence or assertion that such is not the case.

[23]The relevant English law principles have been set out in numerous appellate decisions going back at least 60 years. The traditional starting point is always the judgment of Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd

[1964] 2QB 480

. The principle to be derived from that authority was summarised by Robert Goff LJ in Armagas Ltd v Mundogas (The Ocean Frost)

[1986] 1 AC 731

. Having referred to Freeman & Lockyer he said this:

“I hope I may be forgiven if I do not quote in extenso from this well-known judgment. It appears from that judgment that ostensible authority is created by a representation by the principles of the third party that the agent has the relevant authority and that the representation, when acted upon by the third party, operates as an estoppel, precluding the principal from asserting that he is not bound. The representation which creates ostensible authority may take a variety of forms, but the most common is a representation by conduct by permitting the agent to act in some way in the conduct of the principal’s business with other persons and thereby representing that the agent has authority which an agent so acting in the conduct of a principal’s business usually has.”

Ms Fu also drew my attention to the decision of HHJ Jarman KC (sitting as a judge of the High Court) in Vegesentials Limited & Ors v Shanghai Commercial & Savings Bank Limited

[2024] EWHC 7 (Ch)

. The point of general principle that emerges from Judge Jarman’s judgment starts at paragraph 38, where he says:

“As to ostensible authority, the Court of Appeal in Armagas at [63] summarised what the claimant needs to show, which as applied to this case may be stated as a holding out or representation by the bank to the claimant, intended to be and in fact acted upon by the claimant, that Mr Chiang had authority to do what he did, including acts falling within the usual scope of his ostensible authority.”

I should add for the sake of completeness the general commentary contained in the first supplement of Bowstead and Reynolds on Agency 23rd Ed at paragraph 8-017, where in relation to the question of the degree to which reliance can be placed on the possession of a letterhead by an ostensible agent for a principle, the learned editors say this:

“The incremental way in which the common law develops has meant that there are other issues that remain unsettled. Some of these involve written communications. The ubiquity of letterhead (paper or electronic) within most businesses means that it would not normally be safe to rely on a letterhead alone as representing that the writer has authority to bind the principal whose letterhead it is. A business card that is genuine and gives the agent’s status may, however, be an adequate representation … Less clarity attends the issue of a document (paper or electronic) which has been written by the principal or by someone who had actual authority to write it but is then sent off or handed over prematurely by another agent without actual authority to deliver it …”

There are then various examples dealt with.

[24]This leads back to the circumstances of this present case and Ms Fu’s submission shat there is an adequate holding out of Ms Wick’s authority to sign documents on behalf of the defendant on the material that I have drawn attention to. She maintains that whilst there is a potential argument based upon a want of authority, it is a fanciful argument advanced in bad faith in circumstances where the defendant seeks merely to avoid what it has, in truth, uncompromisingly acknowledged is due.

[25]The analysis I think must start with the documentation in relation to SARL which, aside from identifying the SARL as being the general partner in the defendant, sets out how SARL may act. The point made on behalf of the claimant is that until the “Defence” was served, no challenge has ever been advanced in relation to Ms Wick’s ability or authority to sign documentation on behalf of SARL or the defendant. In those circumstances, the question becomes a factual one, which is whether there is a realistically arguable defence available to the defendant concerning an alleged want of authority on the part of Ms Wicks in circumstances where the defendant has chosen not to appear, not to provide detailed evidence which deals with the status of Ms Wick and in circumstances where there are others involved in the affairs of both SARL and the defendant, who have been involved in email chains for months and who have apparently been content to follow Ms Wick as acting on behalf of the defendant and SARL.

[26]No attempt has been made to explain how it is that Ms Wick was able to sign the promissory note, the guarantee and numerous written communications, in most cases copied to others within SARL, without her authority to do so ever being challenged by or on behalf of the defendant at any stage prior to the service of the “Defence” and why the point was not taken in its earlier defence document. True it is that I must look at the whole of the material, including the material filed by the claimant, and true it is that the defendant is entitled to assert a technical defence without going further on an application of this sort. However, simply to lodge a document which says that the defendant may only be represented by its general partner acting through two validly authorised signatories without providing any evidence in relation to the factual matters to I have just referred is not sufficient to demonstrate that there is a defence available based on an absence of authority because it ignores the possibility that someone may be permitted by the defendant to hold him or herself out as having authority to execute agreements on its behalf and that a person such as Ms Wicks may have been authorised either expressly or impliedly by SARL to act on the defendant’s behalf. It is said that the failure to deal with the valid representation point renders the application defective and an abuse of process and that the claim cannot lawfully proceed. That might have been so but for the fact that no attempt whatsoever has been made by the defendant to explain how it is that Ms Wick has been consistently involved across the whole of the correspondence, including correspondence in the form of emails copied to other clearly employed officials of the defendant and SARL.

[27]Had this case been one where I had to look exclusively at the terms of the agreement relied upon, it might well have been difficult for the claimant to make good its case based on ostensible authority. But in deciding whether the defendant has demonstrated a realistically arguable case that Ms Wick did not have ostensible authority to act on behalf of the defendant, it is legitimate, it seems to me, to look at the whole of the correspondence that followed signature of the counter-indemnity and, in particular, to take note of the fact that at no stage was it asserted in any of that correspondence that Ms Wick did not and never had relevant authority. It is a very difficult proposition to advance on behalf of the defendant that Ms Wick had no ostensible authority when she has signed, as I have said, all the correspondence, including, be it noted, the defence documents relied upon in these proceedings and the other individuals who are the managers of SARL have not provided evidence supporting the contention that Ms Wicks had no authority to execute the counter-indemnity on behalf of the defendant. In those circumstances, I conclude, admittedly with some hesitation, I conclude that the defendant has failed to make good the burden resting on it to demonstrate it has a real as opposed to a fanciful case that Ms Wick did not have authority to sign the agreement the claimant sues upon.

[28]There is no other defence identified by the defendant that can constitute a defence to the claim and in those circumstances, it seems to me the claimant is entitled to judgment. (Proceedings continue - not requested for transcription)

[29]The issue I must determine now concerns the costs of and occasioned by the application. There is a Part 36 offer which was made by the claimant on 31 October which expired on 22 November. The offer was to settle for $1 million, inclusive of interest, and with costs in addition. The letter which accompanied the formal Part 36 offer drew clear attention to the consequences of that offer not being accepted and warned that if the offer was not accepted then, in addition to the judgment sum, the claimant would be seeking and would be entitled to seek costs following expiry of the offer on the indemnity basis, interest on those costs at an enhanced rate of up to 10% and a 10% uplift on damages capped at £75,000 as prescribed in Part 36 of the Civil Procedure Rules. .

[30]In those circumstances, the claimant submits, firstly, that it should have all its costs of and occasioned by these proceedings on the basis that the defendant sought to defend a claim which, upon proper analysis, was indefensible. So far as that is concerned, it has never been the approach of the English courts to order indemnity costs in circumstances where a claim has been defended, albeit on a basis that turns out to be unarguable or may even have been unarguable from the outset. Both parties engaged in a quite extensive correspondence in an attempt to resolve the claim and it strikes me as wrong to characterise that conduct as conduct outside the norm so far as the defendant is concerned when the claimant could have chosen simply to get on with the litigation. In those circumstances, it would be wrong to direct that the claimant’s costs or the whole of these proceedings should eb assessed on the indemnity basis. Different considerations apply, however, once the Part 36 offer had been made and expired. As at that point, it should have been readily apparent to be the defendant that the time had come to engage properly with the litigation and to decide whether there was a serious defence to be advanced in relation to it.

[31]The claimant submits that applying the rules set out in Part 36, in the circumstances of this case there should be costs, there should be all the increments identified in Part 36 following on the expiry of the Part 36 offer. I accept that submission. In those circumstances, I conclude that the claimants are entitled to recover costs on the standard basis down to 22 November of last year and thereafter on the indemnity basis. I further conclude that the claimants are entitled to recover interest on the sum that has been claimed and which they have succeeded in recovering a judgment for.

[32]The claim is denominated in dollars. The claimant has made it clear it does not wish its judgment to be converted into sterling as at today’s date but to continue to take the judgment as a dollar sum. In those circumstances, the normal course would be for interest to be awarded on the sums recovered at the US dollar prime rate. That, in my judgment, is the starting point in relation to the judgment sum. The point which is made is that I can uplift that by 10% above base rate in relation to the costs following expiry of the Part 36 offer. Base rate is applicable only to sterling judgments and therefore, as it seems to me, is not the appropriate metric to look at for the purposes of considering whether if not what uplift there should be on the judgment sum. Doing the best I can and taking account of the fact that the Commercial Court has consistently said it would award interest on dollar sums at prime rate, there is an uplift which needs to be imposed and the uplift I conclude that is appropriate is 7.5%. An uplift in those terms gives effect to the underlying principles which apply in relation to the issues I am now determining, identified most clearly by Sir Geoffrey Vos CHC (as he then was) in OMV Petrom SA v Glencore International AG

[2017] 1WLR 3465

, where he recognised first that the court had a discretion to include the non-compensatory elements in the awards but nonetheless it was appropriate to include these items and to uplift interest by necessary implication in order to provide an appropriate incentive to defendants to engage in reasonable settlement discussions and mediation aimed at achieving a compromise to settle litigation at a reasonable level and in a reasonable time and to make the court’s disapproval of unreasonable and improper conduct. Sir Geoffrey emphasised that parties were no longer entitled to litigate forever simply because they can afford to do so. That is why the Part 36 regime has been introduced and that is why it is necessary to give effect to its provisions. I respectfully agree and in any event am bound by these statements of principle. However, there is a discretion in relation to the appropriate uplift to apply and, as I have said, I consider the uplift for interest that is appropriate is 7.5% above Prime rate.

[33]I have already dealt with the question of costs. Those are to be assessed on the standard basis down to 22 November and thereafter on the indemnity basis.

[34]The next question which arises is what, if any, interest should be ordered to be recovered on costs. So far as that is concerned, there will be an ordinary order in relation to the costs prior to 22 November. Since the costs are denominated in sterling and the usual practice of the Commercial Court and London Circuit Commercial Court is to award interest on sterling sums at base rate plus a range of between 1% and 3%, I conclude that 2% is appropriate in the circumstances and that represents the starting point, therefore, for any uplift.

[35]So far as the costs incurred after 22 November are concerned, interest on those costs can be uplifted to a rate not exceeding 10% above base rate. As I have said, interest would normally be recoverable on costs on a base plus 2% basis. I consider that the appropriate uplift in relation to costs, having regard to that fact, would be 10% on this occasion.

[36]Therefore, the only other additional issue is whether the uplift on the value of the claim should be invoked. No suggestion has been made by the defendant as to why that would be unjust and there is nothing in the circumstances of this case to suggest it would be unjust. The only difficulties created by the fact that the relevant paragraph of the rules assumes that the judgment will be denominated in sterling. I do not conclude that the consequence of that is that if the judgment is in a currency other than sterling the regime does not apply because that would defeat very substantially the purpose of having the Part 36 costs and uplift regime in existence. Therefore, it seems to me appropriate that what should happen for the purposes of calculating the uplift is that the judgment sum should be converted notionally at today’s date to sterling for the purposes of calculating the amount of the uplift, subject to the rule (inaudible) and I so direct. (Proceedings continue - not requested for transcription)

[37]The first assessment issue I need to undertake concerns the costs of and occasioned by the application for summary judgment. As I have already indicated, the Part 36 offer took effect on and after 22 November. The application for summary judgment was issued a few days prior to that, with the result that the standard costs regime would apply in relation to probably the preparation of the application notice and the witness statement in support of the application, which is item 1 in the schedule of work done on documents and might also have included some, though it is difficult to identify on this what attendances on others, including the claimant, as well.

[38]The costs for the most part are to be assessed on the indemnity basis. The test that has to be applied, therefore, involves identifying the work that was reasonably undertaken and that the sums claimed in respect of that wok is reasonable in amount. There are three issues on which to focus attention in the absence of the defendant, being the hourly rates charged by the claimant’s solicitors in respect of the work for which payment is claimed; secondly, the work on documents, which is set out in the schedule and the third concerns the brief fee of counsel.

[39]The first question concerns hourly rates. Two points are made on behalf of the claimant to justify the uplifts from the guideline rates that have been applied in this case which are, for the grade A fee earner, £700 an hour; the grade C fee earner, £528 an hour and the trainee grade D solicitor £260 an hour. The two points made are, firstly, it was necessary for the claimant to engage a firm of solicitors with cross-border capabilities because of the connection with Luxembourg and, to a lesser degree, I think, connection with Ghana as well. That indeed justifies engaging a firm with cross-border capability; it does not justify, however, uplifts in the fees charged in respect of the exclusively commercial litigation in the Commercial or London Circuit Commercial Court. The second point which is being relied upon as justifying the uplift is the point that DLA is a nationally organised firm, that work can be undertaken by its partners and employed solicitors across England and Wales, with the result that there is a degree of artificiality involved in applying guideline rates. Whilst that might justify looking more generously at which of the guideline rates should be applied, it does not justify uplifts beyond the most generous guideline rate, which is London 1. So far as the fee earners are concerned, I am told that Ms Sharma, who is the partner who dealt with this case, is located both in London and Liverpool and the grade C and grade D fee earners are both located in Liverpool.

[40]This is an indemnity costs assessment. Proportionality does not play any part in the assessment. The only question is whether the sums claimed are reasonable in amount. There was undoubtedly a lot of difficulty and, frankly, rather more difficulty than there need have been, in relation to the disposal of this case, largely generated by the defendant’s repeated promises to pay the sums due on an open basis whilst at the same time never quite getting to the point of paying the sums which were due. This generated costs, it generated inconvenience and it generated delay. There was a cross-border element in relation to Luxembourg law, albeit of a limited sort, and overall, having regard to the fact that this is an indemnity costs issue that I have to decide, I direct that Ms Sharma’s costs should be recovered at the guideline London 1 rate, which I record is meant to be for very heavy commercial and corporate work by centrally based London law firms, therefore, a markup to London 1 is generous in the circumstances of this case, having regard to its value and having regard to the issues that really matter.

[41]So far as the grade C and grade D fee earner is concerned, I am prepared to accept that National 1 might be unduly ungenerous in the circumstances but, on the other hand, I am bound to acknowledge that the current guideline rates were uplifted on 1 January 2025. They reflect the views of the guideline fixing authorities as to what is the appropriate sum for a solicitor located in the geographical area covered by the relevant guideline rate and is designed to ensure that only no more than reasonable costs are recovered. As I have said, this is an indemnity costs claim. It is appropriate that there should be some greater flexibility than would normally be permitted for guideline rates. I consider the reasonable time cost charge for the grade C and grade D fee earners is the applicable London 2 rate.

[42]The next issue that arises concerns the work done on documents. The submission made by Ms Fu in relation to that is that the work was reasonably handled, because most of the work was done by the grade C fee earners. I accept that submission. So far as the hours worked are concerned, I have already noted that the application notice and witness statement would be work undertaken at a time when the assessment would technically have to be on the standard as opposed to the indemnity basis. Rather than attempt to refix rates for that work, I simply make a global reduction to take account of what is appropriate and I reduce that to £3,000. Otherwise, the work done on documents is allowed as asked, subject to the rate adjustments to which I have referred earlier in this judgment.

[43]So far as the brief fee is concerned at £7,000, that is a significant sum of money for an application for summary judgment listed to last half a day, inclusive of judgment and costs. By the same token, Ms Fu points out to me that that sum includes not merely preparation for the hearing and the hearing itself, but also for work done in connection with approving documents and the like which would normally be broken down and listed separately. In those circumstances, I conclude that a brief fee in the sum of £7,000 is reasonable, recognising that it covers all the work done in relation to the application, including some work on documents as well. I should record that I have looked at the various attendances on opponents and the like. I am satisfied that those are appropriate, particularly having regard to the fact that this is an indemnity basis assessment.

[44]The final issue which arises concerns attendances at the hearing. Two solicitors are claiming for attendance. That is excess of what is reasonable, even where costs are to be assessed on the indemnity basis. I allow the grade A fee earner’s attendance but disallow the grade C fee earner’s attendance. With those minor adjustments, I so assess the costs of the application. - - - - - - - - - - (This Judgment has been approved by the Judge) Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com