Krishna vs Dillon-Malone

This case involved a dispute over the variation of a costs order nisi, with significant implications due to the non-disclosure of new regulatory changes.

TLDR:

• The Claimant sought to vary a costs order nisi.
• The non-disclosure of new regulations was a central issue.
• The court varied the costs order, awarding the Defendant 50% of its costs.

The Claimant, Mr. Hari Krishna, filed an application to vary a costs order nisi issued on 24 October 2023. This application was unusual as it intended to support a substantive appeal on the merits. The Claimant initially sought to vary the entire order but later limited the application to the costs order due to proportionality and the relatively low monetary penalty already paid.

The evidence on the costs issue included witness statements from both parties. Mr. Ahmed Elnaggar, on behalf of the Claimant, argued that the non-disclosure of the Beneficial Ownership and Control Regulations 2022 (BOCR 2022) significantly impacted the case. He claimed that prior knowledge of these regulations would have altered the Claimant's approach and potentially the court's analysis.

Mr. Elnaggar highlighted that the BOCR 2022 repealed the Beneficial Ownership and Control Regulations 2018 and introduced new requirements for monetary penalty notices. He argued that the Defendant's failure to disclose these changes deprived the Claimant of a fair opportunity to present their case.

The Defendant, represented by Ms. Wicki Andersen, disputed any tactical delay in the publication of the BOCR 2022. She explained that the delay was due to technical reasons related to the new Enhanced Registry System Portal. Ms. Andersen maintained that the BOCR 2022 was not in effect during the proceedings and would not have applied to the Claimant until six months after its publication.

The court accepted the Defendant's explanation but recognized that the non-disclosure of the imminent regulatory changes deprived the Claimant of a justifiable line of forensic inquiry. The court emphasized the high duty of candour required from public authorities and found that the Defendant's stance was difficult to justify.

Ultimately, the court varied the costs order nisi, awarding the Defendant 50% of its costs. The court considered the non-disclosure of the BOCR 2022 a significant factor in its decision, reflecting the importance of transparency and fairness in litigation involving public regulatory authorities.