Permission to appeal refused on cost issues in Malawi sexual exploitation case. Court of Appeal confirms a forum non conveniens defence cannot be brought via a cost order.

Lord Justice Coulson the other week refused [PGI Group Ltd v Thomas & Ors (Application for Permission to Appeal) [2022] EWCA Civ 233] permission to appeal against the High Court’s refusal to grant a capped cost order – CCO in the Malawi exploitation and abuse case.

Coulson LJ firstly grants that the judge may have expressed himself more clearly on some of the technical aspects of the costs in the case however did not misapply relevant CPR rules. Secondly, on the more substantive element of the case the Court of Appeal held that the judge was right to ignore the much lower cost implications of possible Malawi proceedings for to do so, as I flagged in my post on the High Court judgment, would bring in a forum non conveniens defence via the back door of cost orders: [45]:

The costs of pursuing the claim in Malawi must be irrelevant to the making of a CCO in the UK. If a claim is validly brought in the UK, then that brings with it the reasonable/proportionate costs of pursuing those proceedings in the UK.

A good judgment.



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