Ferrotex Industrial Ltd & Anor v Banque Francaise De L'Orient [2001] EWCA Civ 1387 (30 August 2001)

Ferrotex Industrial Ltd & Anor v Banque Francaise De L'Orient [2001] EWCA Civ 1387 (30 August 2001)

In both cases, the applications to extend time for compliance with unless orders for security for costs were refused. In Ferrotex, the court found that although the failure was not intentional, the consent order was designed to produce finality and certainty, and the applicants' history of delay and default, combined with the loss of the appeal hearing slot, outweighed arguments for extension. In Zappia, the failure to comply was intentional, with no good explanation, and the applicants' conduct did not justify relief from sanction.

Citation
[2001] EWCA Civ 1387
Parties
Applicant/claimant: Ferrotex Industrial Limited; Applicant/claimant: Kremikovtzi Corporation; Respondent/defendant: Banque Francaise de l'Orient; Applicant/claimant: Zappia Middle East Construction Co Ltd; Applicant/claimant: Joseph Jeannot Zappia; Respondent/defendant: Clifford Chance (A Firm)
Jurisdiction
England and Wales
Judgment Date
30 August 2001
Procedural Posture
Civil Appeal / Application to Extend Time for Compliance With Unless Orders for Security for Costs
Outcome
Applications to extend time refused in both cases; costs awarded to respondents.
Legal Topics
Security for Costs, Relief From Sanctions, Consent Orders, Extension of Time, Unless Orders
Civil Procedure Commercial Law Security for Costs Relief From Sanctions Consent Orders Extension of Time Unless Orders

Case Brief

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Parties

Ferrotex Industrial Limited

Applicant/claimant

Kremikovtzi Corporation

Applicant/claimant

Banque Francaise de l'Orient

Respondent/defendant

Zappia Middle East Construction Co Ltd

Applicant/claimant

Joseph Jeannot Zappia

Applicant/claimant

Clifford Chance (A Firm)

Respondent/defendant

Procedural Posture

Civil Appeal / Application to Extend Time for Compliance With Unless Orders for Security for Costs

Legal Issues

  1. 1 Whether the court has jurisdiction to extend time for compliance with unless orders for security for costs, particularly where made by consent
  2. 2 Whether relief from sanction should be granted under CPR 3.9 in the circumstances of each case

Ratio Decidendi

In both cases, the applications to extend time for compliance with unless orders for security for costs were refused. In Ferrotex, the court found that although the failure was not intentional, the consent order was designed to produce finality and certainty, and the applicants' history of delay and default, combined with the loss of the appeal hearing slot, outweighed arguments for extension. In Zappia, the failure to comply was intentional, with no good explanation, and the applicants' conduct did not justify relief from sanction.

Court Disposition

Applications to extend time refused in both cases; costs awarded to respondents.

Orders

  • In Ferrotex, applications refused with costs to be summarily assessed at £14,770.
  • In Zappia, applications refused with costs to be summarily assessed at £15,000; costs of unsuccessful appeal before Robert Walker LJ to be subject of detailed assessment; permission to respondent to discontinue respondent's notice with no order as to costs.