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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Ceto Shipping Corporation v Savory Shipping Inc [2024] EWHC 1897 (Comm) (14 June 2024) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2024/1897.html Cite as: [2024] EWHC 1897 (Comm) |
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KING'S BENCH DIVISION
COMMERCIAL COURT
Fetter Lane, London EC4A 1NL |
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B e f o r e :
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CETO SHIPPING CORPORATION |
Claimant |
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- and - |
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SAVORY SHIPPING INC |
Defendant |
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2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: [email protected]
Web: www.martenwalshcherer.com
OLIVER CAPLIN KC (instructed by Waterson Hicks) for the Defendant
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Crown Copyright ©
MR JUSTICE BUTCHER :
"The court may strike out a statement of case if it appears to the court:
…
c) That there has been a failure to comply with a rule, Practice Direction or court order".
In the case of orders for the payment of costs, there is a well-known ability on the part of the court to order that a case may be struck out if there is not the payment of an adverse costs order. This is to ensure that the costs orders which the court makes are complied with. Of course, the court will only impose that sanction in an appropriate case, but it is a sanction which is available to the court, as is indeed stipulated in CPR r 33.4.2(c).
"1. The imposition of a sanction for non-payment of a costs order involves the exercise of a discretion pursuant to the court's inherent jurisdiction.
2. The court should keep carefully in mind the policy behind the imposition of costs orders being made payable within a specified period of time before the end of litigation, namely that they serve to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications.
3. Consideration must be given to all the relevant circumstances, including:
a) The potential applicability of Article 6 of ECHR;
b) The availability of alternative means of enforcing the costs order through the different mechanisms of execution;
c) Whether the court making the costs order did so notwithstanding a submission that it was inappropriate to make a costs order payable before the conclusion of the proceedings in question and, where no such submission was made, whether it ought to have been made, or there is no good reason for it not having been made.
4. A submission by the party in default that he lacks the means to pay and that therefore a debarring order would be a denial of justice and/or a breach of Article 6 of the ECHR should be supported by detailed, cogent and proper evidence which gives full and frank disclosure of the witness's financial position including his or her prospects of raising the necessary funds where his or her cash resources were insufficient to meet the liability.
5. Where the defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue to contest the proceedings unless there are strong reasons for not so ordering.
6. If the court decides that a debarring order should be made, the order ought to be an unless order except where there are strong reasons for imposing an immediate order".
"However, there is a claim for damages by Ceto for breach of the charter. My observations do not apply to that. In the light of my conclusions on stifling, I will order security for the costs relating to that part of the claim in a sum to be determined by me. The sum will be much smaller than that claimed overall and even if I was wrong on my conclusions above on stifling, I would not expect an order in that regard to stifle the claim. I would expect the payment to be staged and the consequence if not paid is that the damages claim and not the whole claim, be stayed".
"The defendant has liberty to apply for an order that the claimant's damages claim be stayed if the payments are not made in accordance with paragraph 2 of this order".
As I say, Mr Lakin's point is that Mr Hollander KC has decided that the only sanction which can be imposed for non-payment of the security for costs is, on application, a stay of Ceto's damages claim.