Court can order costs in foreign currency on summary assessment

Euros: Hourly rate and invoice was in currency and not converted from sterling

The court has jurisdiction to make an order for costs in a foreign currency on summary assessment, a deputy High Court judge has ruled in what he said appeared to be the first case on the point.

John Kimbell QC said there was no basis for reading into the court’s wide discretionary powers to award costs a restriction that an award must be in sterling.

In Cathay Pacific Airlines v Lufthansa Technik [2019] EWHC 715 (Ch), the successful defendant sought a summarily assessed costs award of €37,633.

The N620 costs schedule referred to the hourly rates charged by its solicitors, US firm WilmerHale, for the various grades engaged on the case in euros, and the firm’s invoices were submitted in euros.

“The hourly rates were not the result of a currency conversion from another currency,” the judge noted. “[WilmerHale] thus both accounted for its time engaged directly in euro and invoiced LHT directly in euros.”

Counsel’s fees of £13,375 were accounted for in sterling, although in the N620 schedule, they were converted into euros.

Mr Kimbell found no express or implied limitation on the power of the court which required it to make costs order only in sterling, adding that he considered allowing it to be consistent with the overriding objective.

“In the absence of any binding authority to the contrary, I would be willing, pursuant to CPR 1.2, to interpret the word ‘amount’ as it appears in CPR 44.2(1)(b) and 44.2(6)(b) as including a sum expressed in a foreign currency and I would decline to imply a restriction on the court’s power under section 51 or CPR part 44 precluding costs awards being made in a foreign currency.”

Further, “to imply such a restriction would be contrary to the case law on foreign currency judgments as it has developed in the 42 years since the decision in Miliangos v George Frank (Textiles) Ltd [1976] AC 443”.

Mr Kimbell said the court must determine which currency most truly reflects the claimant’s loss and therefore the currency in which it is most appropriate to compensate the receiving party for the costs which it has incurred.

“This approach is in accordance with principles set out The Folias [1979] AC 685 and The Dione [1980] 2 Lloyd’s Rep 577. It is also consistent with the indemnity principle which underlies awards of costs in England.”

In respect of WilmerHale’s costs, he said the euro was “self-evidently” the currency which most accurately expresses the defendant’s loss and the currency in which it ought to be compensated.

“In respect of counsel’s fees, the currency of account is sterling but the currency of payment is the euro. In my judgment, the most appropriate currency for these costs too is the euro. The appropriate date of conversion is the date on which the overall costs schedule is filed.

“It would of course be possible to divide the costs into two awards one in sterling and one in euro. However, counsel’s fees represent only fraction of a relatively modest total bill and, in my judgment, it would not be in keeping with the overriding objective to split the costs award into fragments on a summary assessment in those circumstances.”

As to procedure, the judge said any party seeking a costs award in a foreign currency should give proper notice of its intention to do so, explain the factual basis for seeking such an award in that currency and provide the court with a sterling equivalent of the sums claimed.

On the facts, he summarily assessed the costs at €25,000.

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