(1) DR GEORGE NASKARIS (2) GREYSTONE PARTNERSHIP GROUP INC v (1) ANS PLC (2) ROBERT FREDERICK KING & ORS (2002)

[2002] EWHC 1782 (Ch)

Ch.D (Blackburne J) 26/7/2002

CIVIL PROCEDURE

COSTS : DISCONTINUANCE : INDEMNITY COSTS : UNREASONABLE BEHAVIOUR : LACK OF COOPERATION : NO ADDRESS WITHIN JURISDICTION

Claimants who discontinued an action were ordered to pay the defendants' costs on an indemnity basis for the period in which they acted unreasonably in trying to delay the trial of the action.

Application by the first and second defendants for an order that the first claimant ('N') and the second claimant ('G'), a company that was controlled by N, should pay their costs, including indemnity costs, following discontinuance of the action. N and G claimed inter alia damages for conspiracy, breach of contract and breach of fiduciary duty, arising from the breakdown of a joint venture between the parties. On 8 February 2002 certain preliminary issues were determined in favour of the defendants in N's absence. Thereafter all the defendants' efforts to keep to a previously-agreed trial date were thwarted. N, who was confined to Berlin by a medical condition, would not provide an address for service within the jurisdiction and claimed that both his fax and e-mail were defective, insisting on service of documents to an address in Berlin. Eventually the claimants discontinued the proceedings. All the defendants sought an order that the claimants pay their costs of the action and the first and second defendants sought indemnity costs for the period following the hearing on 8 February 2002.

HELD: (1) The claimants should pay the defendants' costs of this action, as was the ordinary course where a claimant had discontinued. (2) The events in this action justified characterising the conduct of N as having constituted unreasonable attempts to obtain an adjournment of the trial of the action, unreasonable conduct in rendering himself inaccessible in the critical period up to the commencement of the trial and, more generally, a failure to cooperate with the defendants' solicitors in trial preparation. Indemnity costs would therefore be awarded from 1 April 2002, when the judge considered that the uncooperative and unreasonable behaviour had really started.

Judgment accordingly.

Mr J Odgers instructed by Gouldens for the first and second defendants. The claimants did not attend and were not represented.

Judgment Official