Energy Investments Global Limited and Anor v Albion Energy Limited 06-Jan-2021 [2021] JCA 001 (06 January 2021)

Court of Appeal 6 January 2021 Before : James McNeil Q. C; Sir William Bailhache and Jeremy Storey Q. C. Between Energy Investments Global Limited First Appellant Heritage Oil Limited Second Appellant And Albion Energy Limited Respondent Advocate D. M. Cadin for the Appellants. Advocate A. D. Hoy for the Respondent. judgment Bailhache JA: 1. At paragraph 73 of our judgment handed down on 14 th November 2020, we invited written submissions on costs within 21 days. The Appellants filed their submissions on st December 2020 and the Respondent filed its submissions on 4 th January. We have considered carefully all that has been said; this is our judgment. 2. There has been no suggestion before us that the order for costs made by the Royal Court in favour of the Respondent against the Appellants should be varied. No payment on account of those costs was sought in the court below and they have not been taxed or agreed. Accordingly, we leave that order undisturbed. 3. There is also no dispute before us that the Respondent's costs of and incidental to the appeal incurred to 1 st October 2020 should be awarded against the Appellants jointly and severally on the standard basis. We make that order. 4. We are left with: (i) the costs of the appeal from 2 nd October 2020 (ii) the costs of the application by the Appellants for a discharge of the interim injunction (iii) the costs of the unsuccessful application by the Respondent for leave to appeal to the Judicial Committee (iv) whether any payment on account of costs pending agreement or taxation should be ordered. 5. As is clear from our judgment, the Respondent was largely successful on the grounds of appeal as referred to in the Notice of Appeal, but it failed in relation to the doctrine of non-merger and in relation to the question of appropriation, the latter point being determinative of the appeal. Its primary contention in relation to the costs of the appeal is that those costs should be awarded on an issue basis - by contrast the Appellant contends that all the costs of the appeal after the date on which the appropriation issue became live, i.e. 2 nd October 2020 should be paid by the Respondent because they were costs wasted. The Respondent should, it is said, have agreed to the appeal as from that date. If the appeal costs are disposed of on a time basis, the Respondent contends that the relevant date is 12 th November when the point was first raised in correspondence. 6. In our judgment, the Appellant is right to contend that the costs of the entire appeal could have been avoided once the Escrow monies were paid to the Respondent. The SIA did not provide security for any other liabilities as indicated in our judgment and there was no longer any need for the Respondent to resist the setting aside of the Royal Court order of 30 th July 2020. The Consideration had by nd October been paid in full and the security interest was no longer extant. Thus, the Royal Court's judgment which was addressing what needed to be done to give effect to that security interest had become otiose. In principle therefore, the Respondent should pay the costs of and incidental to the appeal from then, subject to any adjustment to take account of the Appellants' failure to raise the point explicitly in correspondence until 12 th November. 7. As to whether that failure should be reflected in an adjusted costs order, we consider this would not be appropriate. It was or should have been obvious to all parties that the consequence of the order of the English court to direct the payment of the Escrow monies to the Respondent was that the appeal was unnecessary, and we see no reason to penalise the Appellants alone for the failure to accept promptly that this was so. 8. Accordingly, we order the Respondent to pay the Appellants' costs of and incidental to the appeal from 2 nd October on the standard basis. 9. As to the costs of the unsuccessful applications to discharge the injunction and for leave to appeal to the Judicial Committee, these should theoretically follow the event in each case. However, in the interests of seeking to bring these proceedings to a speedier end, we think a broad-brush approach is legitimate and we make no order as to costs in respect of these applications. Accordingly, each side will bear their own costs. 10. That leaves the issue of a payment on account. The parties have both submitted provisional bills setting out the fees and disbursements claimed and have both taken 50% of those costs as the appropriate sum to be awarded on account. The Respondent's claim for the period to 2 nd October (including the costs incurred in the Royal Court) is £121,765.75. The Appellant's claim for the period from 2 nd October amounts to the sum of £63,917.84. Thus, the difference between the two is £57,847.91. Taking 50% of that figure gives the sum of £28,923.95 and we order the Appellants jointly and severally to pay that sum to the Respondent within 28 days of this Judgment. No Authorities Page Last Updated: 25 Jan 2021 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII