Rowan Pennington-Benton (instructed by Madison Legal Limited) for the Third Defendant.
Introduction
- This judgment deals with various costs consequences following a two week trial in July this year and in respect of which I handed down judgment on 5 September 2025.
- A two day hearing dealing with consequential matters took place on 27-28 November 2025 which raised numerous issues, including the grant of a further freezing order against the First Defendant, William Dewsall. I was able to give rulings in relation to many of those issues during the course of the hearing and these are embodied in an order which was sealed by the Court on 5 December 2025 and which also gives effect to the judgment in the main action. This included orders relating to the costs of the main action in respect of the claims against Mr Dewsall, the Second Defendant, Mr Hirschfield and the Fourth Defendant, Horatio Risk Consulting LLP (“Horatio”).
- There was however insufficient time for me to give rulings in respect of the costs of the claim made by the Claimant (“GIAG”) against the Third Defendant, Mrs Dewsall and various applications made during the proceedings where costs had been reserved. The reserved costs relate to three matters:
3.1 An application for a worldwide freezing order against Mr Dewsall which was originally granted in July 2023 and which was continued, with some parts being revoked as a result of undertakings given by Mr and Mrs Dewsall, in August 2023.
3.2 A search order made against Mr Dewsall, Mrs Dewsall and Horatio in July 2024, in respect of which further orders were made at the return date in September 2024 and additional applications were made in February 2025 dealing with privilege and disclosure in respect of the documents obtained as a result of the search order. The matters relating to the search order also include a contempt application which included an application for a bench warrant in respect of Mr and Mrs Dewsall following their refusal to allow the search team entry to their house.
3.3 An application for a second worldwide freezing order, this time against Mr Dewsall, Mrs Dewsall and Horatio which was originally granted in November 2024, which was continued in an amended form in January 2025 pending a further hearing and which was replaced by a domestic freezing order against Mr and Mrs Dewsall in March 2025. Mrs Dewsall appealed unsuccessfully to the Court of Appeal against the domestic freezing order and was ordered to pay the costs of the appeal.
- I now need to make a decision in relation to the costs issues mentioned above. Once I have done so, the following will still need to be addressed:
4.1 Interest on any awards of costs in relation to the matters mentioned above.
4.2 Payments on account for all parties other than Mr Hirschfield (who is not affected by any of the issues I now have to deal with) and in respect of whom the payment on account has already been agreed as set out in the order issued on 5 December 2025.
4.3 What should happen to the proceeds of sale of Weald Hall which are currently held in Court.
4.4 Whether the Court should grant a stay of execution in respect of its judgment in favour of Mrs Dewsall in connection with GIAG’s tracing claim relating to Weald Hall. In reality, this point is simply part of the question as to what should happen to the proceeds of sale of Weald Hall which are held by the Court.
- I would hope that these issues can be dealt with by way of written submissions although I note that GIAG and Mrs Dewsall have indicated that a further short hearing may be necessary.
Costs – relevant principles
- In accordance with CPR Rule 44.2, the Court has a wide discretion in relation to costs. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but the Court may make a different order having regard to all of the circumstances including the conduct of the parties and whether a party has succeeded on part of its case even if it has not been wholly successful. Some examples of conduct which the Court might take into account are set out in CPR 44.2(5).
- Both GIAG and Mrs Dewsall seek costs in respect of some matters on the indemnity basis. They agree that the test is whether there is some conduct or circumstance which takes the case out of the norm (Excelsior Commercial and Industrial Holdings Limited v Salisbury Hammer Aspden and Johnson (a firm) [2002] EWCA Civ 879 at [31-32]). The question is not whether what occurred was something that happened often but whether it is “outside the ordinary and reasonable conduct of proceedings” (Esure Services Limited v Quarcoo [2009] EWCA Civ 595 at [17] and [25]).
- One particular area where courts have been willing to award costs on the indemnity basis is where there has been a breach of the duty of full and frank disclosure on a without notice application for a freezing order (see for example Franses v Al Assad [2007] EWHC 2442 (Ch) at [85]). Another point made at [106] in Al Assad is that it is not a bar to indemnity costs that the Court grants a more limited injunction to that originally sought.
- One point which was touched on in submissions is whether, when making a costs order, a court can (or should) consider allegations such as a breach of full and frank disclosure at a without notice hearing in circumstances where no such complaint was made by the relevant party at the return date. Mr Benson, on behalf of GIAG, suggested that this would be a Henderson v Henderson [1843] 3 Hare 100 abuse of process or, at least, that it would be unreasonable to expect a judge dealing with a reserved costs order to investigate at some distance from the original application whether there had in fact been a breach of the duty of full and frank disclosure.
- Mr Pennington-Benton, acting for Mrs Dewsall, on the other hand submitted that CPR 44.2(4)(a) requires the Court to take into account the conduct of the parties and that this must include matters such as a breach of the duty of full and frank disclosure in relation to a without notice application, whether or not this had been raised previously. Neither party referred to any authorities on the point.
Continue reading this Judgment here.
Share:
