Dereliction of duty for counsel appearing in the JCPC
In the case of Betamax Ltd v State Trading Corporation, Shaman Kapoor acted for the paying party, STC, on the detailed assessment on 28 October 2022. The Appeal before the Judicial Committee of the Privy Council arose from the judgment of the Supreme Court of Mauritius, and raised important questions as to the role that the Supreme Court should play when reviewing arbitration awards under the Model Law. The Sole Arbitrator, pursuant to the Rules of SIAC, had determined that there had been an unlawful repudiation of the contract between the parties such that the damages to be awarded to Betamax were in excess of US$115 million. The contract concerned the affreightment for the transport of petroleum products to Mauritius. Upon Betamax's application to the Supreme Court for recognition and enforcement of the award, the Supreme Court determined that the award was contrary to the public policy of Mauritius, STC being a public body and for all intents and purposes the trading arm of Government. On appeal to the JCPC, the five-member board set aside the order of the Supreme Court and gave permission for the enforcement of the arbitration award. The costs claimed in the JCPC included a sum in excess of £2.3m on account of counsels' fees. In assessing those fees down by some £1.8m, the JCPC, constituted of Costs Judge James and Costs Clerk Ian Sewell, determined that where counsel had either failed to provide an Explanatory Note for fees in excess of the guideline figures set out in the JCPC Practice Direction 8, or had provided such a Note comprising only 3 substantive paragraphs and which was not helpful to the Court, such failing or lack of assistance was a dereliction of duty which had additionally "hung out to dry" their own client.
Shaman was instructed by Gemma Ospedale and Constance Moon of RWK Goodman LLP together with Emma Wilson of EW Legal Costing, all of whom contributed to the team's success.