Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co & Ors [2021] EWHC 352 (Comm) (19 February 2021)

Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co & Ors [2021] EWHC 352 (Comm) (19 February 2021)

Active's conduct was reprehensible and justified indemnity costs; Guarantor Defendants' dishonest case on completion and delivery warranted a reduction, but overall success and trial complexity led to a 75% indemnity costs order. DDI's involvement resulted from Guarantor Defendants' dishonest case, but DDI's own wrongful conduct meant it should bear its own costs.

Citation
[2021] EWHC 352 (Comm)
Parties
Claimant: Active Media Services Inc; First Defendant: Burmester, Duncker & Joly GmbH & Co KG; Second Defendant: AXA Versicherung AG; Third Defendant: European Film Bonds A/S; Fourth Defendant: Double Dutch International Inc
Jurisdiction
England and Wales
Judgment Date
19 February 2021
Procedural Posture
Commercial Court Costs Order / Post Judgment Costs Determination
Outcome
Active ordered to pay 75% of Guarantor Defendants' costs on indemnity basis; DDI to bear its own costs.
Legal Topics
Costs, Indemnity Costs, Issue Based Costs Orders, Waiver, Estoppel, Breach of Contract
Civil Procedure Contract Law Costs Indemnity Costs Issue Based Costs Orders Waiver Estoppel Breach of Contract

Case Brief

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Parties

Active Media Services Inc

Claimant

Burmester, Duncker & Joly GmbH & Co KG

First Defendant

AXA Versicherung AG

Second Defendant

European Film Bonds A/S

Third Defendant

Double Dutch International Inc

Fourth Defendant

Procedural Posture

Commercial Court Costs Order / Post Judgment Costs Determination

Legal Issues

  1. 1 Appropriate costs order following judgment
  2. 2 Whether indemnity costs are justified
  3. 3 Allocation of costs between parties based on conduct and issues

Ratio Decidendi

Active's conduct was reprehensible and justified indemnity costs; Guarantor Defendants' dishonest case on completion and delivery warranted a reduction, but overall success and trial complexity led to a 75% indemnity costs order. DDI's involvement resulted from Guarantor Defendants' dishonest case, but DDI's own wrongful conduct meant it should bear its own costs.

Court Disposition

Active ordered to pay 75% of Guarantor Defendants' costs on indemnity basis; DDI to bear its own costs.

Orders

  • Active to pay 75% of Guarantor Defendants' costs on indemnity basis.
  • Active to make payment on account of £900,000 to Guarantor Defendants.