Old Park Capital Maestro Fund Limited v Old Park Capital Limited (in liquidation)
[2023] EWHC 3057 (Ch)
Lonestar Communications Corporation LLC v Daniel Kaye & Ors
30 March 2023
[2023] EWHC 732 (Comm)
High Court
A company won a lawsuit but only got a small part of what it asked for. The judge decided on how much the losing side should pay in interest and legal fees. Because the winning company asked for way too much money initially, it only got a small portion of its legal fees back. The judge also decided how much other people involved in the case should pay.
Key Facts
- •Lonestar Communications Corporation LLC (Claimant) sued Daniel Kaye, Avishai Marziano, Cellcom Telecommunications Limited, Ran Polani, and Orange Liberia, Inc (Defendants) for damages.
- •Orange Liberia made two "Without Prejudice Save as to Costs" (WPSATC) offers to settle.
- •The court previously ordered Orange Liberia to pay Lonestar a sum in US dollars.
- •Disputes arose regarding the interest rate to be applied on the US dollar amount and the allocation of costs.
- •Lonestar's claim was significantly less than the amount initially sought.
Legal Principles
Determining the appropriate interest rate on US dollar awards.
Various cases including Black Sea & Baltic General Insurance Co Ltd v Baker [1996] LRLR 353, Kuwait Airways Corp v Kuwait Insurance Co (No. 3) [2000] 1 All ER (Comm) 973, Mamidoil-Jetoil v Okta Crude Oil Refinery AS [2002] EWHC 2462 (Comm), Fiona Trust v Privalov [2011] EWHC 664 (Comm), Vis Trading Co Ltd v Nazarov [2013] EWHC 491 (QB), Certain Underwriters at Lloyd’s London v Syria [2018] EWHC 385 (Comm), Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd [2019] EWHC 2338 (Comm), Aercap Ireland Ltd v Hainan Airlines Holding Co Ltd [2020] EWHC 2025 (Comm), Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd [2022] EWHC 2625 (Comm), and Pisante v Logothetis [2022] EWHC 2575 (Comm).
Costs allocation under CPR 44.2.
CPR 44.2 and relevant case law.
Consideration of WPSATC offers in costs assessments.
CPR 44.2(4)(c) and relevant case law.
Indemnity costs orders.
Excelsior v Salisbury Hammer [2002] EWCA Civ 879.
Outcomes
The default interest rate for US$ awards in the Commercial Court will be US Prime, irrespective of the claimant's location or industry.
Based on established Commercial Court practice, the discontinuation of LIBOR, and the trend in recent cases.
Interest will be awarded at US Prime without an uplift for Lonestar.
Lonestar is a large multinational company, and there is no evidence to suggest it would pay a higher borrowing rate than US Prime.
Lonestar will recover 40% of its costs incurred against Orange Liberia up to the first WPSATC letter.
Lonestar's recovery was only 10% of its claim; the claim's size drove disproportionate costs; a significant part of the claim was speculative; and the claim's quantum was heavily contested.
Defendants are jointly and severally liable for common costs, reflecting their conspiracy.
Based on the court's finding of a conspiracy among certain defendants.
Lonestar did not beat the first WPSATC offer.
Considering the costs awarded at trial, Lonestar would have been better off accepting the offer.
Lonestar will pay Orange Liberia’s costs from 6 December 2021, but not on an indemnity basis.
The factors considered in reducing Lonestar's costs award are essentially the same matters Orange Liberia relies upon for indemnity costs.
Costs orders were made against other defendants, with reductions reflecting the issues leading to the reduction in the costs order against Orange Liberia.
Based on the individual circumstances of each defendant and their participation in the litigation.