Nederlandse Financierings-maatschappij Voor Ontwikkelingslanden N.V. v Société Bengaz S.A.
[2023] EWHC 1948 (Comm)
Société Africaine de Raffinage v Savannah SA
23 February 2024
[2024] EWHC 590 (Comm)
High Court
Two companies, SAR and Savannah, are suing each other. Savannah asked the court to make SAR pay for its legal costs upfront because SAR is from Senegal, and it might be hard to get the money back if needed. The judge said Savannah didn't show that this was a real risk, so SAR doesn't have to pay upfront. The judge also paused another case until Savannah pays its own legal costs there.
Key Facts
- •Savannah sued SAR (CL-2023-000236) for US$16 million for alleged wrongful repudiation of a petrol/diesel contract.
- •SAR counter-sued Savannah (CL-2023-000251) for a contractual debt of about €7 million.
- •Savannah, as claimant in CL-2023-000236, was ordered to provide security for costs and has experienced delays.
- •Savannah, as defendant in CL-2023-000251, applied for security for costs and an extension to file its defence.
- •SAR is resident in Senegal, a non-Hague Convention state.
- •Savannah argued a potential for substantial obstacles to enforcing a costs order in Senegal.
Legal Principles
Court has discretion to order security for costs if it is just, but not solely based on jurisdictional threshold. Must act in non-discriminatory manner.
Rule 25.13(2)(a), Bestfort Developments LLP v Ras Al Khaimah Investment Authority [2016] EWCA Civ 1099, Danilina v Chernukhin [2018] EWCA Civ 1802
Test for security for costs is a 'real risk of substantial obstacles to enforcement' or an additional burden in terms of cost or delay. The order should be tailored to the nature and extent of the risk.
Bestfort Developments LLP v Ras Al Khaimah Investment Authority [2016] EWCA Civ 1099, Danilina v Chernukhin [2018] EWCA Civ 1802
Outcomes
Savannah's application for security for costs in CL-2023-000251 was dismissed.
The court found insufficient evidence of a real risk of substantial obstacles to enforcing a costs order in Senegal. The evidence presented was considered speculative and lacking in concrete examples.
Claim CL-2023-000236 (Savannah v SAR) was stayed pending Savannah providing security for costs.
This was agreed by the parties due to Savannah's delay in providing security as per a consent order.
Savannah granted an extension until 4 March 2024 to file and serve its defence in CL-2023-000251.
This accounts for the time taken for the security for costs application and for the court's direction to amend the particulars of claim.
SAR directed to file and serve amended particulars of claim by 4pm on Monday, removing certain paragraphs.
The court found the original pleading to be unhelpful and anticipatory.
Similar Cases
Sanita Limited v Rare Art (London) Ltd
[2023] EWHC 807 (Ch)
RSM Production Corporation v Gaz du Cameroun SA
[2023] EWHC 2820 (Comm)
Naftiran Intertrade Company (NICO) Limited & Anor v GL Greenland Limited & Anor
[2024] EWHC 1364 (Comm)
Litasco SA v Der Mond Oil and Gas Africa SA & Anor
[2023] EWHC 2866 (Comm)