Case No:  2004 Folio 134
NEUTRAL CITATION NUMBER: [2007] EWHC 2064 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL

Date: Friday, 27 July 2007

BEFORE:

MR JUSTICE AIKENS
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BETWEEN:

IXIS CORPORATE & INVESTMENT BANK
Claimant
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(1) WESTLB AG
(2) CIBC WORLD MARKETS PLC
(3) TERRA FIRMA CAPITAL PARTNERS LIMITED
Defendants
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Mr A Twigger (instructed by Stephenson Harwood) appeared on behalf of the Claimant

Mr R Slade (instructed by Ashurst) appeared on behalf of Calyon

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Judgment

1.	MR JUSTICE AIKENS:  I have to decide the question of costs in relation to the application for third-party disclosure against Calyon, which I have said succeeds in part.  The general rule in respect of such applications is set out in CPR part 48.1(2) and (3).  I will not set out the terms as it is not necessary to do so because they are well‑known by the parties involved in this case.  The general rule, broadly, is that the court will award the person against whom the order is sought the costs of the application and are complying with any order made on the application.  However, I have the discretion to vary that, taking into account all the circumstances of the case, and in particular the extent to which it was reasonable for the person against whom the order was sought to oppose the application.

2.	In this case there was a history of imprudence for a period of time before the application was issued on 14 May 2007.  Stephenson Harwood on behalf of IXIS sought the documents from Calyon in correspondence which started on 5 March 2007.  Calyon were at first slow to respond, but their ultimate response was effectively that they would not give the documents and that IXIS would have to go to court to get them.  Mr Twigger accepts that he cannot have the costs for that initial period, and seeks costs for the period from 14 May 2007, which is the date when the application was actually issued.

3.	I have considered carefully whether or not the attitude of Calyon was in any way unreasonable.  I have decided that it was not.  First, I think it was entirely legitimate for them to consider their position.  Secondly, they have, in fact, have succeeded in reducing the ambit of the order sought very considerably.  That is so both in respect of the time period for which the documents are to be ordered, and also in respect of the classes of documents and number of personnel in respect of whom the order will apply.  In my judgment the behaviour of Calyon was entirely reasonable for a large banking entity to take in respect of internal documentation, as well as other possible documents with other parties, even though these other parties are parties to the current proceedings.

4.	Accordingly, I see no reason why the general rule should not be applied in this case and that is the order that I would make.

5.	I do think that the hourly rate for purposes of assessment is too high.  It is not reasonable.  It is way above the current guideline for grade A solicitors in the city working on big cases, and I would therefore assess that as being £450 per hour.

6.	I have come to the conclusion that I should not allow the total amount of time for preparation of the bundles, etcetera, for the hearing, which Mr Graham has done himself.  I reduce that (simply because it is easier to do it this way) to two hours at his rate.  In other circumstances it would be as a trainee would get, where he might take longer but it might be the same figure.

7.	So far as attendance at the hearing is concerned, I will allow that.  I will allow all the proposed fees for Mr Slade on the basis that they represent work he has actually done on advice preparing documents and for the hearing.  I accept that that would have been substantial.

8.	The net result is a reduction in hourly rate and a reduction in the preparation of clearing time.  Twenty-eight days in which to pay that.