Shah & Anor v HSBC Private Bank (UK) Ltd

Lord Justice Longmore:

1. We will make the following order. We are grateful for the parties’ submissions, and we are not going to make any separate order as to the costs of today. On the agreed form of order, I have already made clear the court’s position in relation to paragraph 3. That ought to be reflected slightly, probably, in paragraph 4, since we are refusing 6(b), which at the moment would seem to be covered by paragraph 4. Paragraphs 5, 6, 7 and 8 will remain as drafted.

2. I will deal with paragraph 10 first. As far as the costs of this appeal, we have regard to the many issues on which the appellant has lost and the respondent has won and we nevertheless do also have regard to the fact that the ultimate victory, in the sense of keeping the action alive, is that of Mr Shah. We therefore conclude that he ought to have some proportion of his costs in this court but not a high proportion.

3. Our decision is that the defendants are to pay 25% of the costs of the appeal, to include the costs of today, to be taxed if not agreed. We do not propose to make any order for payment of a kind pursuant to paragraph 13 of the draft.

4. As far as the costs below are concerned, that was even more difficult for us since we have to a limited extent reversed the judge below and it is very difficult for us to see quite where the balance of advantage is in relation to the many issues that were argued below. We are extremely conscious of the fact that a lot of unnecessary points were taken both below and in the Court of Appeal. As far as below is concerned, we are to some extent influenced by what Mr Lissack QC has said but not very much. We have concluded that the right order is that there be no order as to the costs before the judge.

5. Paragraph 11 will remain; that should be paid back to the claimants. As far as paragraph 12 is concerned, in the light of what we have said it will be the figure of £200,000, which Mr Shah has already paid, that is returnable; but we will delete the last line and-a-half of paragraph 12 and substitute an order that there should be a stay pending an application to the Commercial Judge for a security for costs. Paragraph 13 will come out, and as far as 14 and 15 are concerned, I have already said that the permission to appeal to the Supreme Court is refused. Lord Justice Lloyd:

6. I think, strictly speaking, the very end of paragraph 12 stays in, because the sum should be paid in principle back to the claimants’ solicitors, subject to an application for security. Lord Justice Longmore:

7. I think my Lord is quite right about that, yes. Lord Justice Ward:

8. Unusually, we called you in. We usually prefer to deal with on paper, and I am grateful for your oral submissions. You both have been very helpful, thank you. So thank you for coming. Order: Application granted; costs order made