Nicholls v Michael Wilson & Partners Ltd (No 2)

The proceedings before the Court of Appeal involved an appeal by the Appellants against orders made by Einstein J. The dispute concerned various aspects of costs, including whether a costs order should reflect partial success, the capping of a successful party's costs entitlement, and the release of security for costs. Additionally, the appeal addressed the variation of freezing orders and the remission of a claim for damages.

The primary legal issues before the Court of Appeal were: (1) the appropriate orders for costs of the appeal, particularly in light of the parties' respective successes and failures; (2) the variation of existing freezing orders by reducing the secured amounts; (3) the remission of an application by non-parties to discharge a freezing order; (4) the dismissal of an application by an appellant to remit a claim for damages; and (5) the release of the respondent from its obligations to provide security for the appellants' costs and its undertaking as to damages.

The Court of Appeal made several orders regarding costs, reflecting a mixed outcome for the parties. It ordered the Appellants to pay the Respondent's costs of the appeal incurred prior to 1 December 2011, but made no order as to costs incurred thereafter, meaning each party would bear its own costs for that period. The trial costs orders were not disturbed. Crucially, the Court varied the freezing orders, significantly reducing the secured amounts from over $36 million and $32 million to $7 million each, and continued these varied orders. An application by non-parties to discharge a freezing order was remitted for determination, with the non-parties ordered to pay the respondent's costs of that specific hearing. The second appellant's application to remit his claim for damages was dismissed. Finally, the respondent was released from its obligations to provide security for the appellants' costs and its undertaking as to damages, with directions for the return of bank guarantees and reimbursement of associated fees.