Exporien Mining Private Limited Company v. Aggreko International Projects Limited – High Court of Justice – [2024] EWHC 1463 (Comm) – Case Summary

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Commercial litigation practitioners, contract law specialists, international trade lawyers

This case concerned an appeal by Exporien Mining Private Limited Company seeking extensions of time to provide security for costs and a cross-application by Aggreko International Projects Limited to strike out the claim for non-compliance with court orders.

TLDR:

• Exporien sought extensions for providing security for costs.
• Aggreko applied to strike out the claim for non-compliance.
• The court considered the adequacy of 'after-the-event' insurance as security.
• Exporien's applications were allowed to proceed but required adjustments.
• Both parties were directed to agree on a final order within 21 days.

The case involved Exporien Mining Private Limited Company, a Zimbabwean company, and Aggreko International Projects Limited, based in Scotland. The dispute arose from a consultancy agreement made on 5 August 2010 and renewed on 5 August 2015. Exporien claimed a commission for a contract between Aggreko and Sakunda Holdings, which Aggreko denied, attributing the introduction to another broker.

Exporien's claim was filed in January 2022, but proceedings were stayed for settlement discussions which failed by February 2023. Aggreko then sought security for costs, which was granted by Judge Pelling in November 2023, requiring Exporien to pay £76,000 into court by February 2024. Exporien failed to comply and instead proposed 'after-the-event' insurance as security, leading to further applications and hearings.

The court examined whether Exporien's applications for varying the form of security could proceed. Under CPR rule 3.1(7), the court has discretion to vary orders, primarily in cases of material change in circumstances or misstatement of facts. The court found that Exporien's situation warranted consideration due to the potential availability of 'after-the-event' insurance and the absence of significant prejudice to Aggreko.

The court then evaluated the adequacy of the proposed insurance policy. It was determined that while 'after-the-event' insurance can be acceptable, the policy must provide sufficient protection, particularly against anti-avoidance clauses. The policy offered by Exporien had certain deficiencies, including coverage limitations and the requirement for a conditional fee agreement, which needed to be addressed.

Aggreko's application to strike out the claim was considered premature. Instead, the court opted for an 'unless' order, giving Exporien 21 days to either pay the security into court or amend the insurance policy to meet the court's requirements. The court emphasized the need to resolve the matter promptly to avoid further delays.

The parties were instructed to agree on a minute of order reflecting these directions and to address any remaining issues, including costs, in subsequent submissions.

Legal representatives: Kira King (instructed by Hogan Lovells International Llp LLP) for the Claimant. Joseph Farmer (instructed by Baker & McKenzie LLP) for the Defendant.

Judicial Panel: Philip Marshall KC (sitting as a Deputy Judge of the High Court)

Case Citation Reference: [2024] EWHC 1463 (Comm)