GAIN Capital UK Limited v Citigroup Inc (No 3)

GAIN Capital UK Limited brought an application against Citigroup Inc, seeking leave to amend pleadings and file an affidavit, which was opposed by Citigroup Inc. The court had to decide on whether the costs of the interlocutory application should be borne by the applicant or the respondent. The applicant argued that as it had secured the orders it sought, the respondent should pay its costs. However, the court found that the success in this matter could not be categorised in the same way as success at the end of a contested final hearing. The applicant was seeking and obtaining an indulgence from the Court. The court also found that the respondent's opposition of the application did not mean that it should pay the applicant's costs. The court concluded that the appropriate order was that the applicant should pay the respondent's costs of the interlocutory application. The court referred to precedents that had adopted a similar approach in awarding costs in relation to a party seeking an indulgence.

The court held that the costs of the interlocutory application should not follow the event in this case, as the applicant was seeking and obtaining an indulgence from the Court. The court found that the respondent had taken a proper approach in responding to the applicant's application, and there was no reason to criticise it for doing so. The court held that it would make an order that the applicant pay the respondent's costs of the interlocutory application filed on 29 February 2016. The court noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.