Asertis Ltd v Lewis Barry Bloch
[2024] EWHC 2393 (Ch)
Exporien Mining Private Limited Company v Aggreko International Projects Limited
13 June 2024
[2024] EWHC 1463 (Comm)
High Court
A company owed another money and didn't pay a court-ordered deposit to guarantee it could pay if it lost. The court nearly threw the case out but gave the company a second chance to fix its insurance policy to prove it could cover the costs.
Key Facts
- •Exporien Mining Private Limited (Zimbabwian company) sued Aggreko International Projects Limited (Scottish company) for unpaid commission (over US$1 million) under a consultancy agreement.
- •Aggreko obtained a security for costs order requiring Exporien to pay £76,000 into court by February 8, 2024, and £27,398 in costs by November 22, 2023.
- •Exporien failed to meet either deadline but secured an after-the-event (ATE) insurance policy.
- •Exporien applied for extensions and variation of the security order to accept the ATE policy.
- •Aggreko applied to strike out Exporien's claim for non-compliance.
Legal Principles
Court's power to vary or revoke an order under CPR rule 3.1(7).
CPR rule 3.1(7), Tibbles v SIG PLC [2012] 1 WLR 2591
Variation of an order is rare and usually requires a material change of circumstances or misstatement of facts.
Tibbles v SIG PLC [2012] 1 WLR 2591
An ATE insurance policy can provide alternative security for costs, provided it offers sufficient protection and contains anti-avoidance clauses.
Premier Motorauctions Ltd. v PricewaterhouseCoopers LLP [2018] 1 WLR 295, Harlequin Property (SVG) Ltd. v Wilkins Kennedy [2015] EWHC 1122 (TCC)
The usual course for non-compliance with a costs order is a peremptory order, not immediate strike-out.
Crystal Decisions UK Limited v Vedatech Corp [2006] EWHC 3500 (Ch), Michael Wilson & Partners v Sinclair [2017] EWHC 2424 (Comm)
Outcomes
Exporien's applications for extension and variation of the security for costs order were entertained, exceptionally.
While no material change of circumstances existed, the court considered the judge's anticipation of an ATE policy, lack of prejudice to Aggreko due to the stayed proceedings, and the promptness of Exporien's action before the deadline.
The ATE policy was deemed insufficient due to gaps in coverage (e.g., indemnity costs exceeding standard basis, wasted costs, costs from unreasonable behaviour, costs related to previous applications, and lack of damages-based agreement).
The policy did not fully address objections raised by Aggreko, particularly concerning the absence of anti-avoidance clauses for certain costs.
Aggreko's application to strike out was refused, but an 'unless' order was made.
The court opted for an 'unless' order for both outstanding costs and security, giving Exporien a final chance to comply within 21 days by either paying into court or addressing the policy's deficiencies.