Coram: The Hon. Mr. Justice Waung in Chambers
Date of Hearing: 17th December 1996
Date of Handing Down of Reasons for Judgment: 19th December 1996
REASONS FOR JUDGMENT
1. On this application by the 2nd Defendant for security for costs against the Plaintiff, I dismissed the application at the conclusionof the hearing. I now hand down my reasons.
2. This is an Action in which the Plaintiff claims against the 1st and 2nd Defendants arising out of its exclusive rights of sellingthe 1st Defendant’s printing presses in China. The 1st Defendant has settled the Plaintiff’s claim against it and has paid or isabout to pay DM200,000 but the Plaintiff is continuing with its action against the 2nd Defendant. The 2nd Defendant says it willbe incurring costs of something like $3.7 million for the whole case and that therefore the Court should order security for costsin that figure or somewhere around that figure.
3. The first matter which arises for decision is what ought to be the proper recoverable costs of the 2nd Defendant against the Plaintiffin the event that the Plaintiff should fail in its action against the 2nd Defendant. I must say I was shocked by the figure of $3.7million put forward in the Skeleton Bill of the 2nd Defendant. The claim is for $2.4 million and even on the 2nd Defendant’s owncase, the trial is take no more than 3 or 4 days. There is nothing so unusual about this Action which either justifies leading counselor the extravagant high fees put forward in the Skeleton Bill. With the benefit of my past experience in this sort of commercialmatter and taking into account what I have been told at the hearing, I am of the firm view that a proper figure for costs in thissort of case cannot possibly be $3.7 million or $3 million or even $2 million. It should be around $1,000,000, give and take 10%or 15%. Miss Cruden has conceded that there had been a number of applications in which costs orders had been made against the 2ndDefendant and that therefore the already incurred fees figure put forward will have to be drastically reduced. In the circumstances,assuming I come to the view that security for costs ought to be given by the Plaintiff to the 2nd Defendant, I would assess thatquantum at $1,000,000.
4. With that figure of $1,000,000 as the quantum which the 2nd Defendant could properly look to the Plaintiff in the event of the Plaintifffailing in its action, what should the court do. In exercising the discretion, the Court should obviously take into account all thecircumstances, but it seems to me that I should bear in mind amongst other factors, the following:-
5. In a valiant attempt to persuade the Court that some sort of security for costs should be ordered, Miss Cruden has put forward avery attractive case and said everything which could be said in favour of that application. But I remain wholly convinced that nocase had been made out by the 2nd Defendant for an order of security for costs. The application is therefore dismissed with costsagainst the 2nd Defendant.
Miss Liza Jane Cruden for the 2nd Defendant instructed by Messrs Wilkinson & Grist
Mr. Gilbert Collins of Messrs Boase Cohen & Collins for the Plaintiff