Shah & Anor v HSBC Private Bank (UK) Ltd [2012] EWHC 1855 (QB)

[2012] EWHC 1855 (QB)Case No HQ07X03152
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 July 2012
Before
THE HON. MR JUSTICE SUPPERSTONE
Between
JAYESH SHAHClaimantsSHALEETHA MAHABEERClaimantHSBC PRIVATE BANK (UK) LIMITEDDefendant
Messrs Edwards Wildman Palmer UK LLP for ClaimantsNicholas Medcroft (instructed by Messrs Berwin Leighton Paisner) for DefendantHearing Hearing dates: 29 November-21 December 2011, 9-20 January,6 & 7 February, 1 & 2 March 2012
Judgment
[1]On 16 May 2012 this claim was dismissed for the reasons set out in my judgment ([2012] EWHC 1283 (QB)).[2]At the hearing on 16 May 2012, following Judgment, Mr Lissack QC, for the Defendant, applied for costs, an interim payment and payment out of court of monies held as security. After hearing submissions from Mr Lissack and Mr Downes QC, for the Claimants, I ordered, in so far as is material, as follows:
“2. As to costs, payment be made to the Defendant of the £180,602.33 held in court unless an application is made by the Claimants within 7 days of the date of this order, which objects to the payment out on the basis that the above named sum does not represent security paid into court. 3. The Claimants pay within 14 days of the date of this order £726,293.08 to the Defendant with liberty to apply given to the Claimants in respect of the timing of this payment only. 4. £180,602.33 plus £726,293.08 represents 40% of the Defendant’s costs as set out in the Defendant’s schedule dated 14 May 2012, namely £2,267,238.53. 5. Within 28 days of the date of this order the Claimants must provide a skeleton argument as to the final determination of costs. 6. Within 14 days of the service of the Claimants’ skeleton argument, the Defendant is to serve a skeleton argument in reply. 7. Thereafter, the final determination of costs will be determined on paper unless either party requests an oral hearing in writing once both parties’ skeleton arguments have been lodged at Court.”
[3]In breach of paragraph 3 of the Order the Claimants did not pay the sum of £726,293.08 to the Defendant within 14 days of the date of the Order. Indeed no payment at all has been made by the Claimants pursuant to paragraph 3 of the Order and no application has been made by the Claimants in respect of the timing of this payment.[4]Further the Claimants have not provided a skeleton argument as to the final determination of costs, either within 28 days of the date of the Order as required by paragraph 5 of the Order or at any time.[5]The Defendant has filed a skeleton argument prepared by Mr Medcroft dated 25 June 2012 in support of its application for costs, seeking an order that the Claimants pay the whole of the Defendant’s costs.[6]At paragraph 4 of his skeleton argument Mr Medcroft notes at the time of writing the Claimants have provided no explanation for the breaches of the Order to which I have referred. Mr Medcroft refers to letters from Messrs Berwin Leighton Paisner, on behalf of the Defendant, to Messrs Edwards Wildman Palmer, on behalf of the Claimants dated 29 May 2012 and 1 June 2012 to which Edwards Wildman Palmer have not responded. The Defendant infers that the Claimants have no intention of paying the interim payment or of taking any further part in these proceedings.[7]No representations have been made by or on behalf of the Claimants to the Defendant’s skeleton argument.[8]There were ten agreed issues to be determined in the case (see Judgment at paragraph 23). The Defendant succeeded on every one of the agreed issues. I accept Mr Medcroft’s submission that in so far as the Defendant lost on any subsidiary points these were of little significance in the context of the litigation as a whole. In those circumstances, in my judgment, there is no basis to depart from the general rule that the Claimants, as the unsuccessful party, should pay the costs of the Defendant, the successful party (CPR 44.3(2)(a)). I consider there is no basis for an “issues based” costs order or an order that the Claimants pay only a proportion of the Defendant’s costs.

Conclusion

[9]In my judgment, for the reasons I have given, the Claimants shall pay the Defendant’s costs of these proceedings, to be subject to detailed assessment if not agreed.