Jofa highlights a procedural problem in relation to the fair allocation of costs in the Court of Appeal, as Graeme Kirk explains
- The decision in Jofa is indicative of a flawed procedure in the CPR which the rule committee ought to revisit.
The Court of Appeal’s decision in Jofa Limited and Farah v Benherst Finance Limited and Chestone Industry Holding [2019] EWCA Civ 899 principally concerned the costs applicable where pre-action disclosure is ordered against someone who is not anticipated to be a party to proceedings—a Norwich Pharmacal order.
Jofa Limited is a small building firm, incorporated by its shareholder and director, Mr Farah, who had been the second respondent to an application for Norwich Pharmacal relief brought by overseas investors. The investors Benherst Finance Ltd and Chestone Industry Holding claimed that their money had disappeared, rather than bearing fruit in a luxury Knightsbridge development project, and wished to know from Jofa and Mr Farah, as well as from the NatWest, what had happened to it by looking at accounts and contract documents.
At first instance, HHJ Melissa Clarke sitting in the
