Smellie CJ
IN THE GRANT CAUSE NO: 211 BEWEEI 1 2 3 4 5 AND UNILEVER PLC UNILEVER NV MOLSON INC JOHNSONDIVERSEYHOLDINGS INC JOHNSONDIVERSEY INC JOHNSONDIVERSEY UK LIMITED JOHNSONDIVERSEY GULF FZE ABC INTERNATIONAL PLAINTIFFS DEFENDANT CAUSE NO: 321 BETWEEN 1 2 3 4 5 AND OF 2006 MOLSON COORS BREWING CO. JOHNSONDIVERSEY EUROPE BV COMMERCIAL MARKETS HOLDCO INC. MRS. S. CURTIS JOHNSON III MRS. HELEN JOHNSON LEIPOLD MR. CLIFTON LOUIS MRS. IMOGENE P. JOHNSON NALCO HOLDING CO NALCO SAUDI CO LIMITED
KIMBERLY-CLARK CORPORATION ABC INTERNATIONAL PLAINTIFFS DEFENDANT IN CHAMBERS THE 5th MARCH BEFORE THE APPEARANCE ION, CHIEF JUSTICE Mr. Nick Dunne of Walkers for the plaintiffs Mr. Lee Freeman of Priestleys for the defendant
1. This ongoing proceeding
The backg this Court will be resu RULING ing and now protracted litigation arises entirely froinr of the defendant ABCI seeking to force the plainti s before the International Commercial Court in Paris. round to the litigation is described in a written sum of 27 September 2007 and in which judgment it was de- trained form seeking to force the plaintiffs to arbitrate. from the unusual risks to arbitrate in any judgment of strict that ABCI
ABCI did 29 February summons.
The result ABCI's ap-
The reas which is application
Those rea- nceding not seek to appeal against that judgment. Instead it filed a ry 2008 seeking an order to set aside the summary judgment, but did not seek to pursue until September 2008, some 8 was a further written decision given on 22 September application to set aside was denied. for that decision are very relevant to the question whether ABCI should be required to pay the plainti on an indemnity basis, rather than on the standard ba- sons included findings that ABCI had throughout the ters including up until that very application heard in ed a summons on ignment but which months later. r 2008, in which before me now, ffs' costs of the sist's conduct of these September 2008, engaged in
This court very bela by ABCI Septembe this mor- a course of delay and prevarication. of conduct appears to be ongoing even now, in light of red instructions (his firm being at least the 4th set of in this action) to seek leave to appeal against the
Given the history of the matter, the suggestion that whatever reasons ABCI may have to ex- ing, that whatever reasons ABCI may have to ex- Mr. Freeman's attorneys engaged decision of 22nd by Mr. Freeman plain its dilatory
behaviour rings very
When view- has been u words of I motivated should st this action are to be reserved for explanation to the Court of Appeal, hallow indeed. am satisfied that ABCI's conduct in reasonable. It is conduct which can apply be described J. (as he then was) - as "...a highly opportun- and approach to litigation which [is] unreasonable, and longly discourage." See Cepheus Shipping v. Court of Appeal, these proceedings ed - to adopt the ist and tactically without this court Guardian Royal Exchange
Findings this conclu- At paragraph paragraph Assistance Plc. [1995] J Lloyd's Rep. 647. from my earlier ruling of 22nd September 2008 are as follows: h 2: "I am satisfied that ABCI has been improperly to delay the due disposition proceedings; up to and including the tri- summary judgment application on 27th 2007." h 3: "I have in mind, in particular, ABCI's failure this application in a timely manner did to without the promptings of the plaintiffs.... I in mind ABCI's failure to appeal - as it con- against the summary judgment itself and absence of any explanation why it did not pursue that more obvious course." so illustrative of seeking of these al of the e to bring purpose it allow me - the total t seek to paragraph
10. It is now of Court to re- CILR 293 behaved in this case. attributed was to be Cellock A.
When it behaviour out of po- between reasonable
In my view, here were
I therefor, 2008 and ctg J. in Nike Real Estate v De Bruyne et al. 2002 CILR to the expense of litigation as a consequence of it would be unjust for the successful party to find it would be unjust for the successful party to find it in having itself to absorb the difference, often sub- costs which it may recover on the standard base costs of responding to the unreasonable conduct. w, that would be the position in which the plaintiffs, thus be denied the recovery of their costs on the indi- grant their application for their costs of the application on the indemnity basis (earlier order R 37. ch unreasonable cost substantially antial difference, is and its actual would be placed emits basis. on of September is for costs having been mad- Hok Anthony Sr Chief Justice March 5 2009 on the standard basis).