not be subject to any appeal or review , page-24

Dear vvg26,

As a true lover of the Rules and all things legal, just to go on with your efforts, the company's legal team need to read Order 59 closely. They ought to apply for costs on an indemnity basis by reason of the fact that Lynas' application to be joined as an Intervenor ought not have been opposed (if it in fact was opposed- who knows the reporting is so poor!).

The test for granting leave to intervene interestingly involves a Privy Council decision from Malaya (which has been cited in Australian cases- Pegang Mining Co Ltd v Choong Sam (1969) 2 Privy Council Cases 593; [1969] 2 Malayan LJ 52) where the test for granting leave to a party to intervene was summarised this way, will the proposed defendant’s rights against or liabilities to any party to the action in respect of the subject-matter of the action be directly affected by any order which may be made in the action? Enough said.

More importantly on the issue of indemnity costs, if the application to intervene was not opposed, is that the basis for the stay of the TOL was not only ill-founded, but flew in the face of clear scientific scrutiny establishing the opposite. The claims of potential physical damage caused by the LAMP and hence the need for the stay were vexatious and not supported by any evidence. It might be argued quite properly that the opposition was brought for an ulterior motive. It will be very interesting to read what the judge says.

The effect of all that (from a company perspective)is that the balance of convenience does not weigh in favour of an extension of a stay on the TOL and ought not to have been sought. Thus the stay ought to be removed and indemnity costs paid by SMSL to the government and Lynas!!! SMSL can then appeal the costs order etc. etc. etc.

Time will tell...Tomorrow is a very significant day, as it gets harder to successfully appeal. So if the judge orders the removal of the stay order on the TOL, the company can operate until the judicial reviews are heard. This means the company can progress rather than be held in abeyance until the reviews are disposed of! I can hear E. J. calling me for a pre game meeting...Fire up!

See below for the costs Rules, I think I have distilled the relevant Order.

Costs for interlocutory applications (High Court) (O. 59, r. 21)

21. The amount of costs payable upon the conclusion of any interlocutory application, other than those falling within the ambit of rule 22 shall be at the discretion of the Court, but in fixing the amount of costs, the Court shall have regard, inter alia, to the factors set out in rule 16.


Assessment of costs

Basis of assessment (O. 59, r. 16)

16. (1) In assessing the costs payable in relation to any item, the Court shall have regard to all relevant circumstances, and in particular to—

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialized knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel;

(c) the number and importance of the documents, however brief, prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the importance of the cause or matter to the client;

(f) where money or property is involved, its amount or value;

(g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.

(2) Subject to the other provisions of these Rules, the amount of costs which any party are entitled to recover is the amount allowed after determination of costs on the standard basis where-

(a) an order is made that the costs of one party to proceedings be paid by another party to those proceedings;

(b) an order is made for the payment of costs out of any fund; or

(c) no order for costs is required, unless it appears to the Court to be appropriate to order costs to be determined on the indemnity basis.

(3) On an assessment of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the Court may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party; and in these Rules, the term “the standard basis”, in relation to the determination of costs, shall be construed accordingly.

(4) On a determination of costs on the indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the Court may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party; and in these Rules, the term “the indemnity basis”, in relation to the determination of costs, shall be construed accordingly.

(5) Where the Court makes an order for costs without indicating the basis of determination of costs or an order that costs be determined on any basis other than the standard basis or the indemnity basis, the costs shall be determined on the standard basis.

(6) Notwithstanding paragraphs (2) to (4), if any action is brought in the High Court, which would have been within the jurisdiction of a Subordinate Court, the plaintiff shall not be entitled to any more costs than he would have been entitled to if the proceedings had been brought in a Subordinate Court, unless in any such action a Judge certifies that there was sufficient reason for bringing the action in the High Court.