Olsen & Anor v Finansiel Stabilitet A/S (Re Consequential Matters) [2025] EWHC 147 (KB)

Rory Turnbull (instructed by Freeths LLP) for the Respondent.

Mr Justice Kerr :

• On 16 January 2025, I handed down judgment in writing on the appellants’ appeal to this court against an order of Master Cook registering a Danish judgment for the purpose of enforcement of the judgment debt, and interest on it, in England and Wales; and against a supplemental order for costs assessed at £12,500. The citation is [2025] EWHC 42 (KB). This supplemental judgment on consequential matters should be read with that earlier judgment.

• I am grateful to the parties for their written representations sent at my invitation. The outstanding issues are, first, the form of my order on the appeal; second, whether the costs order below should be altered; and third, the costs of the appeal. Permission to appeal to the Court of Appeal is, rightly, not sought by the respondent; since my decision is itself made on appeal, any application for permission to appeal against it must be made to the Court of Appeal.

• I have considered the representations about the form of my order. I have drafted an order which takes account of those submissions and embodies my decision in the main judgment. The effect of the order is, as I decided in the main judgment, that the registration order was validly made and is upheld but its effect expired at midnight on the day it was made, 16 August 2023, so that it is worthless in the hands of the respondent.

• As to the costs order made below, the Judgments Order provides by article 3 and paragraph 2(1) of Schedule 1 that where a judgment is registered under the Judgments Regulation, “the reasonable costs of and incidental to its registration shall be recoverable as if they were sums recoverable under the judgment”. The parties disagreed about the impact of that provision, given my decision in the main judgment. I have considered the parties’ rival contentions on that point.

• The appellants submitted that the costs order should be set aside because by reason of expiry of the limitation period there is now no enforceable judgment debt and therefore no “sums recoverable under the judgment”. The respondent submitted that the costs order should remain intact: the Danish judgment was validly registered and the reasonable costs of and incidental to applying for its registration remain recoverable; expiry of the limitation period is irrelevant.

• I think the respondent’s submission is to be preferred. It was entitled to apply to register the Danish judgment and had to do so in haste because of the imminent expiry of the limitation period. The respondent was aware that could prevent enforcement and told the Master so; but that did not mean it was unjustified in attempting to obtain an order that might be effective as a means of enforcing payment of the debt; even though it has proved ineffective.

• The remaining issue is what order I should make as to the costs of the appeal to this court. I have considered carefully the parties’ representations on this issue and the relevant costs provisions in the Civil Procedure Rules, which are CPR rule 46.5 and Practice Direction 46; CPR rule 44.2 and CPR rule 44.11. The primary position on each side was to claim costs against the other and to submit that they should not have to pay any costs. Each side produced a costs schedule.

• Each side claimed to be the successful party. The respondent has succeeded in upholding the validity of the registration order. The appellants have succeeded in securing an order which renders it worthless in the respondent’s hands. In my judgment, the appellants are, in substance, the successful parties. It would be arid formalism and elevate form over substance to suggest that the respondent has succeeded in its enterprise, which was to enforce the debt.

• I have to have regard to the conduct of the parties. Neither party alluded to their own conduct in their written representations and both sides alluded to the conduct of the other side. In my judgment, some costs were incurred on both sides as a result of the other side’s conduct, but the shortcomings of the respondent’s conduct were more venial and much less serious than the shortcomings of the appellants’ conduct during the appeal process.

• On the respondent’s side, it acted impeccably at first, complying faithfully with the duty of full and frank disclosure including citing to Master Cook (through Mr Kurmani’s witness statement) the Coursier case which has proved significant. However, the respondent fell short when it later failed to inform Garnham J that permission to appeal was not required. That was unfortunate especially as the appellants were unrepresented. Some costs were wasted.

Continue reading this Judgment here.