Ineos Upstream Ltd & Ors v Persons Unknown

Mr Justice Morgan:

1. I handed down judgment in this matter on 23 November 2017. The neutral citation of that judgment is [2017] EWHC 2945 (Ch). Following that judgment, I gave directions for the parties to make written submissions and counter-submissions in relation to any issues arising as to costs and as to permission to appeal. The neutral citation of my earlier judgment is [2017] EWHC 2945 (Ch). I have now received submissions and counter-submissions from the Claimants and from the Seventh Defendant and submissions from the Sixth Defendants. This further judgment deals with the various applications which have been made in relation to costs and with the applications by the Sixth and Seventh Defendants for permission to appeal to the Court of Appeal. Costs

2. The Claimants do not seek their costs of their application dated 31 July 2017 for injunctive relief against Persons Unknown. However, the Claimants do seek their costs of the applications made by the Sixth and Seventh Defendants on 6 September 2017.

3. The Sixth Defendant submits that there should be no order for costs against him.

4. The Seventh Defendant submits that he should have his costs in relation to the Claimants’ application for injunctive relief against Persons Unknown and his costs of his application of 6 September 2017.

5. The Claimants say that although they substantially succeeded on their applications for injunctive relief against Persons Unknown they do not seek their costs against anyone, and therefore do not seek their costs against the Sixth and Seventh Defendants. The Claimants accept that they had to come to court to obtain the relief which they sought and the order made following my judgment of 23 November 2017 incorporated modifications to earlier orders made at hearings on 28 July 2017 and 12 September 2017. However, in relation to the applications of the Sixth and Seventh Defendants on 6 September 2017, the Claimants submit that they succeeded in persuading the court to make no order on those applications with the result that they should have their costs against the Sixth and Seventh Defendants.

6. As regards the Sixth and Seventh Defendants, I will refer first to the submissions made by the Seventh Defendant. The Seventh Defendant submits that he was the successful party, alternatively the successful party to a substantial extent, in relation to the Claimants’ application for injunctive relief against Persons Unknown. In support of this submission, he points out that the Claimants’ application was for final injunctions although they did not attempt to obtain final injunctions on the hearing of that application. He further submits that a comparison of the order made following my judgment of 23 November 2017 with the orders made at the hearings on 28 July 2017 and 12 September 2017 shows the extent to which he succeeded in obtaining modifications of the earlier orders. It is said that he should therefore obtain his costs of the Claimants’ application, alternatively a substantial part of those costs. He also criticises the conduct of the Claimants as regards the presentation of the evidence and their arguments, the volume of evidence relied upon, the failure to add representative defendants, the bringing of claims for harassment, the absence of particulars of the claims being made and what he says was the oppressive response of the Claimants’ solicitor to his requests for information. As to his application of 6 September 2017, he submits that that application was successful on 12 September 2017. Finally, he submits that in no circumstances should the court make an order for costs against him. In support of this submission, he refers to other cases where the courts have considered that an order for costs should not be made against an unsuccessful party where that party put forward arguments in the public interest. He also relies on the Aarhus Convention.

7. The Sixth Defendant submitted that there should be no order as to costs and he adopted parts of the submissions of the Seventh Defendant so far as relevant to his contention. He submitted that his application of 6 September 2017 sought an order varying or discharging the earlier order made at the hearing on 28 July 2017 and he succeeded in obtaining a variation of that earlier order. He further submitted that his participation (and that of the Seventh Defendant) was of significant assistance to the court and that the case was one of general interest and of public importance.

8. In response to these submissions, my assessment of the position is as follows: (1) as regards the question of success or failure in relation to the Claimants’ application for injunctive relief against Persons Unknown, the Claimants were not successful in all respects but were significantly more successful than the Sixth and Seventh Defendants in relation to the arguments which were put before the court; (2) if the Claimants’ application for injunctive relief had sought that relief against the Sixth and Seventh Defendants, there would have been a case for giving the Claimants a part of their costs against the Sixth and Seventh Defendants and there would not have been a case for giving the Sixth and Seventh Defendants any part of their costs against the Claimants; (3) in view of the fact that the Claimants’ application was for injunctive relief against Persons Unknown, the Claimants had to come to court in any event to obtain that relief; (4) the opposition presented by the Sixth and Seventh Defendants to the Claimants’ application lengthened the hearing (as compared with a case where no one appeared on behalf of the Defendants) but the participation of the Sixth and Seventh Defendants was of assistance to the court in a case of public importance; (5) the Claimants are not entitled to their costs of their application for injunctive relief against the Sixth and Seventh Defendants (and they do not seek them) and the Sixth Defendant is not entitled to his costs against the Claimants of that application (and he does not seek them) and I consider that the Seventh Defendant is not in principle (subject to the possibility considered and rejected in (6) below) entitled to his costs against the Claimants of that application; (6) I do not consider that the Seventh Defendant’s criticisms of the Claimants’ conduct of the application are well founded and they do not persuade me to make an order for costs in favour of the Seventh Defendant; (7) as regards the Seventh Defendants’ claim for his costs of his application of 6 September 2017, I do not consider that that application succeeded on 12 September 2017 when the court continued the earlier order with some modifications; (8) as regards the Claimants’ application for their costs against the Sixth Defendant of his application, there is a case for saying that the Claimants should have those costs; in so far as the Sixth Defendant sought a variation of the earlier order it is not clear that it was necessary to apply for a variation of the earlier order as distinct from opposing the further order being sought by the Claimants; further, in so far as the Sixth Defendant’s application was based on his contention that the Claimants had been in breach of their duty of candour on the earlier ex parte application, that contention failed; however, on balance, I consider that the right approach to the Sixth Defendant’s contention as to the duty of candour is that it should not be separated out as an issue which should carry an order for costs but instead that contention should be considered as one of the many issues which had to be determined and it should be dealt with in the same way as all of the issues arising; (9) as regards the Claimants’ application for their costs against the Seventh Defendant of his application, I take the same view as in the case of the Sixth Defendant.

9. Taking all of the above matters into account, I have reached the conclusion that the fair result is that there should be no order for costs in respect of the Claimants’ application of 31 July 2017 and no orders for costs in respect of the Sixth and Seventh Defendants’ applications of 6 September 2017. It is not necessary to consider the Aarhus Convention. Permission to appeal

10. Both of the Sixth and Seventh Defendants seek permission to appeal to the Court of Appeal against my decision. They both submit that I should grant permission to appeal on two grounds, namely: (1) that such an appeal would have a real prospect of success; and (2) that there is some other compelling reason for the appeal to be heard.

11. The Sixth and Seventh Defendants have separately identified a large number of intended grounds of appeal. I have, of course, considered the grounds of appeal with care and I have re-read my judgment. Having done so, I am not persuaded that either of the Sixth or Seventh Defendants has a real prospect of showing that I committed any error of principle in my approach. I consider that on all matters of principle, I applied established authority to the circumstances of this case. As regards the grounds of appeal which say that I wrongly applied the principles to the circumstances of the case, I am not persuaded that there is a real prospect of showing that that has happened particularly in relation to matters which involved evaluation and judgment or assessment of the facts. My reasons for reaching these conclusions are essentially the reasons which I set out in my reserved judgment as many of the points intended to be raised on appeal were argued before me and I have dealt with them in that judgment. However, I do wish to comment specifically on one ground of appeal raised by the Sixth Defendant. It is said that when I considered what a court at a trial would be likely to conclude, I did not ask myself whether it was likely that such a court would accept the evidence being relied upon by the Claimants: see [98] of the judgment. However, I expressed myself the way I did at [98] because, as I had explained at [18] in the judgment, there was no real dispute before me as to the substance of the evidence (as distinct from matters of detail) being relied upon by the Claimants.

12. As to the contention that even if the proposed appeal does not have a real prospect of success, there is a compelling reason for the appeal to be heard, I do not think that I should give permission on that ground. I consider that I have applied established principle to the circumstances of the case and many (if not all) of those principles have already been considered by the Court of Appeal or the House of Lords. I also bear in mind that the Court of Appeal itself refused permission to appeal on two occasions which are relevant when considering whether the circumstances of the present case provide a compelling reason for an appeal to be heard. The two cases to which I refer are Mayor of London v Hall [2011] 1 WLR 504 and City of London v Samede [2012] 2 All ER 1039.

13. I therefore refuse permission to appeal.