Arkin v Borchard Lines Ltd & Ors No.3

Arkin v Borchard Lines Ltd & Ors No.3

The court held that Part 20 proceedings are separate from the main action and costs should follow the event. Impecuniosity of the claimant does not justify departing from the general rule except in exceptional cases. Borchard, having joined the Part 20 defendants and benefited from their evidence, must bear their costs as ordered, and no cut-through or cost-sharing order is justified.

Parties
Claimant: Yeshekel Arkin; 1st Defendant: Borchard Lines Limited; 2nd Defendant: Camomile Lines Ltd; 3rd Defendant: Furness Withy (Shipping) Ltd; 4th Defendant: Manchester Lines Ltd; Part 20 Defendant: Zim Israel Navigation Company Ltd; Part 20 Defendant: KNSM; Part 20 Defendant: DNOL; Advocate for 1st and 6th Part 20 Defendant: Vasanti Selvaratnam QC and Fergus Randolph (Messrs Berwin Leighton Paisner)
Jurisdiction
England and Wales
Judgment Date
16 December 2003
Procedural Posture
Commercial Court Judgment / Post Trial Costs Determination
Outcome
Costs orders granted in favour of Part 20 defendants against Borchard.
Legal Topics
Costs Orders, Joinder of Parties, Impecuniosity, Part 20 Proceedings, Expert Evidence, CPR 44.3(2)(a)
Civil Procedure Competition Law Costs Orders Joinder of Parties Impecuniosity Part 20 Proceedings Expert Evidence CPR 44.3(2)(a)

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Parties

Yeshekel Arkin

Claimant

Borchard Lines Limited

1st Defendant

Camomile Lines Ltd

2nd Defendant

Furness Withy (Shipping) Ltd

3rd Defendant

Manchester Lines Ltd

4th Defendant

Zim Israel Navigation Company Ltd

Part 20 Defendant

KNSM

Part 20 Defendant

DNOL

Part 20 Defendant

Vasanti Selvaratnam QC and Fergus Randolph (Messrs Berwin Leighton Paisner)

Advocate for 1st and 6th Part 20 Defendant

Procedural Posture

Commercial Court Judgment / Post Trial Costs Determination

Legal Issues

  1. 1 Whether Borchard should bear the costs of Part 20 defendants given the claimant's impecuniosity
  2. 2 Appropriate costs orders in Part 20 proceedings when claimant cannot pay
  3. 3 Whether a cut-through or Sanderson order is justified in exceptional circumstances

Ratio Decidendi

The court held that Part 20 proceedings are separate from the main action and costs should follow the event. Impecuniosity of the claimant does not justify departing from the general rule except in exceptional cases. Borchard, having joined the Part 20 defendants and benefited from their evidence, must bear their costs as ordered, and no cut-through or cost-sharing order is justified.

Court Disposition

Costs orders granted in favour of Part 20 defendants against Borchard.

Orders

  • Zim entitled to recover 90% of its costs from Borchard.
  • KNSM and DNOL (DAC Part 20 defendants) entitled to recover 80% of their costs from Borchard.