Indus Powertech Inc. v Echjay Industries Private Limited [2026] EWHC 1482 (Comm)

[2026] EWHC 1482 (Comm)Case No CL-2025-000156
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 15 June 2026
Before
Sean O'Sullivan KC
Between
INDUS POWERTECH INC.ClaimantECHJAY INDUSTRIES PRIVATE LIMITEDDefendant
RICKY DIWAN KC (instructed by Stewarts Law LLP) for ClaimantCHINTAN CHANDRACHUD (instructed by Wilmer Cutler Pickering Hale and Dorr LLP) for DefendantWritten Submissions dated 8 June 2026Further email submissions dated 8 and 9 June 2026
RULING ON COSTS

Sean O'Sullivan KC (sitting as a Deputy High Court Judge):

[1]I handed down judgment in relation to this arbitration claim on 10 April 2026 (see [2026] EWHC 827 (Comm)). I found that the Claimant (“Indus”)’s challenge to the Award dated 13 March 2025 (“the Award”) succeeded and as a result certain issues fell to be remitted to the Tribunal.[2]The Defendant (“Echjay”) accepts that, in the light of my conclusions, it must pay Indus’ costs of the arbitration claim before the English Court. It is also common ground that all questions of costs in the arbitration itself will be decided by the Tribunal.[3]I am now asked to resolve, by way of consequential matters, three issues: 3.1. whether Indus’ costs of the arbitration claim should be summarily assessed; 3.2. if so, in what amount (and if not, what order should be made in relation to payments on account); and 3.3. whether Echjay should be permitted to set off its undisputed entitlement under the Award against whatever is payable to Indus in respect of costs.[4]I will take those issues in turn. (1). Summary assessment[5]Indus submits that I should summarily assess its costs. It observes that paragraph F.13.2 of the Commercial Court Guide contemplates the Court giving consideration to whether or not it should summarily assess costs in respect of heavy applications, including heavy applications where the costs claimed exceed £250,000. Indus submits summary assessment is appropriate in this case because:(a) the Court is intimately familiar with the nature and scope of the s.68 application and is well placed to assess costs;(b) summary assessment will save time and costs for both the parties and the Court;(c) the s.68 application only exceeded the “threshold” for summary assessment by ½ a day; and(d) the overall costs, whilst substantial, fall within the type of range that the Court does summarily assess.[6]Echjay argues that I should require detailed assessment. It points out that paragraph F13.2 of the Guide makes clear that the default in a case where the Schedule of Costs is more than £250,000 is not to carry out summary assessment. Indus’s claimed costs are nearly three times that figure.[7]More generally, it relies upon paragraph 9.2 of CPR PD44, which provides that a summary assessment should not be made “where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily”. It says that it has identified substantial grounds for disputing the sums claimed, many of which cannot be dealt with summarily. For example, it suggests that the Court cannot summarily determine what (if anything) is recoverable in respect of Indus’s Indian counsel fees and that it is not possible to say, absent further information, what proportion of Indus’s English solicitors’ fees were reasonably incurred identifying the relevant grounds of challenge and in the preparation of the Claimant’s skeleton argument.[8]I agree with Echjay that it would not be appropriate summarily to assess Indus’s costs. Summary assessment is something of a blunt instrument. If the sums at stake are relatively small, it enables disputes about costs to be dealt with efficiently and proportionately. The fact that the process will inevitably be more impressionistic than evidence-based is, in that context, a virtue. But there comes a point at which the sums at stake are too large, and the issues about what should be recovered too complex, for that blunt instrument to be the most suitable tool. The figure of £250,000, while in no way representing a limit on the power to carry out a summary assessment, has been identified in the Commercial Court Guide as representing the boundary between claims for costs for which summary assessment might be expected to be the right way forward, and those for which it might not.[9]In the present case, the sum claimed is heading towards being 3 times that figure of £250,000. I do not doubt that there could be situations in which it would still be appropriate summarily to assess costs, despite the sums in issue being many multiples of that figure. But the default option, when the costs claimed are so substantial, must be detailed assessment. In any event, I agree with Echjay that the issues about the recoverability of some categories of costs in this case would benefit from some closer investigation and consideration. That will be possible on detailed assessment. It is more difficult to do justice to such issues when one is painting with a broad brush on summary assessment.[10]Accordingly, I will order that Echjay pay Indus’s costs of the arbitration claim, to be subject to detailed assessment on the standard basis if not agreed. (2). Payment on account[11]Where a costs order is made envisaging detailed assessment, the Court will order a payment on account of costs “unless there is good reason not to do so”: see CPR r.44.2(8).[12]Indus has provided a cost schedule in the amount of £669,060.61. It seeks an interim payment of £250,00, which represents about 37% of the claimed costs. It makes a number of points in support of the sums claimed. First, it says that it was successful on the application (although that might be said to be a justification for the order that it be paid its costs, rather than being relevant to their quantum).[13]In terms of the work involved, Indus says that:(a) it was necessary to traverse the extensive procedural history in order to identify the points argued in written and oral submissions;(b) it was necessary to identify how the matters were put in the expert evidence including in cross-examination in the underlying arbitration;(c) it was necessary to conduct a detailed analysis of the Award in order to answer the question of whether the issues were dealt with;(d) the contours of the matters that needed to be considered and addressed impacted the scope of the witness evidence;(e) given that both Indus and Echjay had instructed Indian counsel in the underlying arbitration, there was an additional and inevitable layer of cost arising out of their involvement for the purpose of identifying what had been argued in the arbitration etc.;(f) it was inevitable that Indus would need to instruct a specialist arbitration law firm and counsel at higher hourly rates;(g) the bulk of Indus’s law firm costs were split across a very streamlined team comprising one partner, one associate together with paralegal assistance.[14]Echjay makes a series of complaints about the level of Indus’s costs: 14.1. it says the headline figures of £669,060.61 is disproportionate to the scope of the application and the duration of the hearing. The hearing lasted for 1½ days. Indus’s evidence consisted of two witness statements totalling 51 pages and its skeleton argument was 25 pages. Most of the voluminous background material was of no relevance to the s. 68 challenge. The debate between the parties focused on a limited number of paragraphs of the Award; 14.2. it observes that the hourly rates charged are substantially higher than the solicitors’ guideline hourly rates for London (Band 1). For example, the partner rate of £925 per hour is nearly 40% higher than the guideline rate (£579). It argues that a party claiming hourly rates in excess of the guideline must provide a “clear and compelling justification”: per Males LJ in Samsung Electronics v LG Display [2022] EWCA Civ 466 at [6]. Echjay says that there is none here; 14.3. it points to what it calls the remarkably high Indian counsel fees: £93,946.08. The figures for the spent on reviewing the application documents and witness statement is said to equate to perhaps 52 days of work, assuming 8-hour working days. It is said that cannot be justified in the context of reviewing materials that Indian counsel did not draft. Echjay also submits that Indus cannot argue that these Indian counsel fees are reasonable because its Indian lawyers conducted the underlying arbitration and possessed a detailed knowledge of the factual background, but then seek to justify its English solicitors’ fees on the basis that “substantial work [was] required to master the factual and procedural background of the underlying arbitration”; 14.4. it complains about the fact that Indus’s English solicitors have charged £80,565 for the preparation of the application documents and the first witness statement of Ms Bani Dikshit, which is only 22 pages long. Echjay suggests that part of the reason for this is because that sum includes costs incurred in relation to “the identification and success of the challenge”, and contends that, while Indus cannot be criticised for asking its lawyer to explore grounds for challenge, it cannot recover from Echjay the costs associated with that exercise; and 14.5. it also criticises that fact that Indus’s English solicitors have charged £68,778.50 for hearing preparation, which includes “preparing and considering the Claimant’s Skeleton”. It says that it is not reasonable for to recover solicitors’ fees in such a large amount for preparing a skeleton argument in circumstances where Mr Diwan KC has charged a brief fee of £140,158.33 in relation to the hearing (which must include preparing the skeleton).[15]I remind myself that the Court is not required to set the payment on account at the level of an irreducible minimum which will inevitably be recovered on detailed assessment; rather, it is concerned with identifying a sum which is reasonable in all the circumstances allowing for matters such as a margin for error in the estimation of likely recovery: see Excalibur Ventures LLC v Texas Keystone Inc[2015] EWHC 566 (Comm).[16]It seems to me that there is force in several of the points which have been made by Echjay about Indus’s costs. In particular: 16.1. I agree that the headline number is at the upper end of what I might expect for what was really just 1.5 days of submissions; 16.2. the hourly rates which have been used exceed the Guideline Rates to a degree which might be difficult to justify (on an inter partes basis), even for a relatively high-profile (if not especially high value) international arbitration dispute of this kind; 16.3. there does appear to be some duplication in relation to the fees charged by Stewarts Law and(a) the fees charged by Indian Counsel (for the purposes of understanding the issues and evidence);(b) the fees charged by Mr Diwan KC (for drafting the skeleton etc.); and 16.4. there is scope for argument about whether some of the work on documents is properly to be characterised as costs of the arbitration claim.[17]I would also anticipate, in the usual way, that a number of the figures for profit costs would be taxed down to arrive at a value which is reasonable inter partes.[18]Having regard to all of that, and perhaps especially to the high hourly rates, I might have been minded to opt for something like 40-45% of the total figure as allowing a sufficient margin for error, which would equate to a payment on account of something of the order of £270,000 – 300,000.[19]However: 19.1. I note that Indus’s own proposed figure is only £250,000; and 19.2. I also need to have regard to the arguments about set off, to which I now turn. (3). Set off[20]Echjay seeks an order that, in effect, sets off against this liability for costs the sum which was awarded to it in the Award, but which was not the subject of the s.68 application. It points out that the Tribunal has awarded damages to Echjay in the principal sum of US$273,449.38, that this part of the Award was not affected by the s.68 challenge, but that Indus has not yet paid this part of the Award. Echjay contends that the interest accrued on that sum amounts to US$16,931.39, making a total of US$290,380.77, being about £217,400 at current exchange rates.[21]Indus submits that the Court has no power to order such a set-off or otherwise take into account the said sum. In order for the Award to become part of the “national legal order”, Indus contends, the Award would first need to be enforced pursuant to s.66 of the Arbitration Act 1996. This has not been done. As such, while CPR 44.12 permits set-off of costs that a party is “liable” to pay, Indus argues that this means “liable” under an English court judgment or order, because any other interpretation would permit an arbitral award to be treated as part of “the national legal order” without the necessary enforcement procedures.[22]Alternatively, if I have a discretion, Indus argues that I should not exercise it. It suggests it would be unfair to order set-off in circumstances where any attempt to enforce the Award would be met with a cross-application for a stay pending the outcome of remission. This is because I have also provided for remission to the Tribunal of all issues of costs. Indus suggests that it would be unfair for Echjay to be permitted to set off the part of the Award that is in its favour, in circumstances where a significant sum (i.e. by way of costs) may in due course be awarded to Indus.[23]For its part, Echjay submits that, under s. 51 of the Senior Courts Act 1981 (re-stated in CPR 44.2), the Court has wide discretion in respect of costs. This includes the “power to order that one order for costs should be set-off against another”.[24]Echjay submits that there is no force in Indus’s point that this is not (yet) a judgment debt. Echjay says that makes no difference, given the breadth of the Court’s powers. It acknowledges that the Award is the subject of enforcement proceedings in North Carolina, but offers to provide an undertaking to the Court that it will not seek to recover in the United States or elsewhere, if that sum is set off against the costs order made in these proceedings.[25]On that basis, Echjay invites the Court, if Indus’s costs are to be subject to detailed assessment, to make a declaration that Echjay is entitled to exercise a set off against whatever is awarded following detailed assessment. It suggests that Echjay should be required to make an interim payment on account of costs of no more than £80,000, representing about 45% of Indus’s claimed costs, less the uncontested sum awarded to Echjay by the Tribunal.[26]Only limited authority has been cited to me, but Echjay pointed out that, in Vava v Angol America South Africa Ltd [2013] 5 Costs LR 805, Andrew Smith J commented (at [16]) on the role of set off in the context of orders for costs: “The courts have long recognised that one judgment or order for payment of a sum may be set-off against another… This extends to orders for costs (Reid v Cooper [1915] 2 KB 147), and is reflected in CPR 44.12. However, the right to set off judgments and orders is not a form of equitable set-off. Scott LJ so characterised it in Lockley v National Blood Transfusion Service [1992] 1 WLR 492, 496–7, but in R (Burkett) v LB of Hammersmith and Fulham [2004] EWCA Civ 1342 at paras 44 to 48 Brooke LJ, while agreeing with Scott LJ about the discretionary nature of the right of set-off, did not regard it as equitable. As Denham (loc cit at para 2–103, 104) points out, it cannot be because the practice was developed in the common law courts long before the Judicature Acts and “The true basis of set off is the court’s inherent jurisdiction”, its purpose being “to do what is fair””.[27]The parties also made some submissions about the approach of the Court of Appeal in Emmott v Wilson [2016] EWCA Civ 875, in which the Court of Appeal can be seen to have ordered that a costs order in favour of MWP be set off against an arbitration award. But it is difficult to know whether that fact, absent analysis, assists Echjay here. Indus points out that Mr Emmott had been given leave to enforce the award as a judgment of the English Court (see [2017] EWHC 2424 (Comm)), even if the timings suggest that that decision to grant leave to enforce was itself subject at that time to an extant application for permission to appeal.[28]Be all that as it may, I am not much impressed by Indus’s submission that I do not have power to take into account the fact of an arbitration award when deciding what to order about the payment of costs. It seems to me that CPR r.44.2(8) gives me a very wide discretion in relation to ordering payments on account, albeit that I would need a “good reason” before deciding not to make any such order at all.[29]Nor does it seem to me that there is any requirement that an arbitration award has been formally recognised by the English Court, via an application for leave to enforce, before this Court can have regard to what it says. Of course, the enforcement powers of the English Court will not be available until that procedural step has been taken, but it does not follow that this represents the only gateway to that award forming part of “the national legal order”, whatever that might mean. The Court is not required to ignore the terms of a binding contract unless and until a judgment is obtained enforcing those terms. Why should a binding arbitration award be treated any differently?[30]To my mind, the more important considerations are the following: 30.1. first, the principal sum of US$273,449.38 has been found to be due to Echjay and, subject only to set off, Indus has no answer to that entitlement, or to the payment of interest thereon; 30.2. second, the position could change in the future, in that the Tribunal could find for Indus in relation to the issues which have been remitted to it and then award Indus some or all of the costs of the arbitration reference. At the other end of the spectrum, the Tribunal could decide those issues in favour of Echjay and find that further sums are payable to Echjay. All of that is uncertain. All that I know for sure is that the parties have not yet reached the end of the process; and 30.3. third, there must be no double-counting. If Echjay is given the benefit of its entitlement to that sum of US$273,449.38 plus interest now, it cannot also enforce that part of the Award against Indus (putting aside any arguments about its entitlement to do so).[31]I am not persuaded that it is appropriate for me to make a declaration about Echjay’s entitlement to set off. Having regard to the second point above, I am troubled that doing so might cause more problems than it solves. What would be the status of that declaration, if, for example, the Tribunal were to make awards of costs in favour of Indus? I am also unhappy about making what would amount to a substantive and final decision about Echjay’s entitlement to exercise a right of set off, when the parties’ submissions on the law to date have only really scratched the surface of that complicated topic.[32]I do not need to make any final decision in that regard, because I am satisfied I have a discretion in relation to the making, and especially the amount, of a payment on account of costs, and that is all that I am required to decide now by way of issue consequential upon my earlier judgment. I can take the existence of Echjay’s undoubted current entitlement pursuant to the Award into account when I exercise my discretion in that regard. That seems to me the fairest approach: not to require Echjay to pay over further sums to a party which currently owes it something of the order of £215,000. If necessary, it seems to me that the existence of that cross-entitlement amounts to a good reason for making a slightly different order from that envisaged by CPR r.44.2(8).[33]Whether it will ever be necessary for the English Court to make any further decision in relation to Echjay’s entitlement to set off will depend on what happens in the detailed assessment, on what happens in the arbitration, and perhaps most of all on whether the parties can instead agree a sensible way forward in relation to their respective entitlements. If a further decision is necessary, it can be taken with the benefit of more information about what is due, and fuller submissions on the applicable law.[34]Having regard to the foregoing, if Echjay gives the undertaking which it has offered, I propose, in the exercise of my discretion, to make an allowance for Echjay’s current entitlement under the Award (including for interest thereon) by ordering that it pay only £85,000 (i.e. approx. £300,000, less about £215,000) on account of Indus’s costs of the arbitration claim. Subject to any further order, payment should be made within 21 days. I would be grateful if Counsel would seek to agree a draft order encompassing the foregoing and provide the same to me.[35]I should add that: 35.1. I recognise that, because I am not making the declaration sought, Echjay’s undertaking will have to allow for the position to change in the future: e.g. if the process of detailed assessment or agreement results in a figure for costs which Indus is permitted to enforce. The undertaking may need to be subject to agreement or further order of the Court, or limited in some other way. I would ask the parties to seek to reach agreement in that regard, failing which Echjay will have to make clear to me what it is willing to offer and I will consider whether, having regard to the third consideration identified above, that proposed undertaking suffices to make it fair for me to exercise my discretion in Echjay’s favour as I have proposed; and 35.2. nothing I have said should be taken as tying the hands of any future judge, whether in relation to any substantive issue about set off, or the exercise of their own discretion concerning the payment of costs.[36]I will end by expressing my thanks to the parties for their helpful and focussed written submissions, which remained within my stipulated page limit, despite needing to canvass a topic (i.e. set off) of which I had not been aware when setting that limit.