The Secretary of State for Business and Trade v Alexander David Greensill

This judgment is concerned with the two consequential matters on which the parties were unable to reach agreement as a result of the judgment I handed down on 18 March 2026 ([2026] EWHC 639 (Ch)). They relate to a payment of account of costs and permission to appeal. I shall use the same abbreviations I used in the March judgment.

Mr Greensill does not dispute that he must pay the SoS’s costs of his application for the relief sought by paragraphs 1 to 4 of the draft order accompanying his application notice to be subject to detailed assessment if not agreed. This is reflected in paragraph 2 of the order dated 18 March 2026 (sealed on 30 March 2026).

The starting point is that, as the court has ordered Mr Greensill to pay costs subject to detailed assessment, it will order him to pay a reasonable sum on account of those costs unless there is good reason not to do so (CPR 44.2(8)). The SoS’s total costs of the application were £181,085.25 from which he has deducted 30% as an estimate of those parts of the application (paragraph 5 to 7 of the draft order) which were disposed of by the order made on 5 March 2026. He has then reduced that amount (£126,759.68) by 50% and seeks a payment on account of the resulting £63,000.

However Mr Greensill says that no payment on account should be made because he succeeded on the paragraph 5 and 7 issues and has an order for costs in his favour (as reflected in the 5 March order). He estimates his costs of that application at £600,000, although no breakdown of those costs has been provided. He accepts that the 5 March order has been drawn up with no provision for a payment on account and that a paragraph in the draft order which contemplated a payment on account was deleted by the SoS and was not included in the final version. But it is submitted on his behalf that it was and remains his intention to apply for such an order, that the right figure would be £300,000 and that he would then be entitled to apply for a set off in accordance with CPR 44.12

I agree that the fact that the order of 5 March 2026 has already been sealed does not in and of itself preclude the court from making an order for a payment on account in favour of Mr Greensill on a later occasion. As was submitted on his behalf, this was the view of HHJ Matthews (sitting as a Judge of the High Court) in Culliford v Thorpe [2018] EWHC 2532 (Ch) at [14] and I agree with it.

However, it remains a matter of the court’s discretion as to whether it should decline to make the usual order on the grounds that it was not sought at the time.

I think that Judge Matthews was right to say what he said in [15] of his judgment. It is of some relevance in the present case, because it is clear that a deliberate decision was made not to seek such an order on 5 March. There is no dispute that an order for a payment on account was originally included in the draft proposed by Mr Greensill’s solicitors. This was deleted by counsel for the SoS and the final version, containing no reference to a payment on account, was then agreed on behalf of Mr Greensill. It was said on behalf of Mr Greensill that the provision for a payment on account was removed from the draft in order to facilitate the SoS’s urgent agreement to the proposed terms, because it was evident at the time that any provision for an interim payment by the SoS would have been opposed.

It is not disputed that this was the reason that Mr Greensill agreed to the deletion and I accept that it is possible that what occured may not have amounted to a binding waiver by Mr Greensill of his right to seek an interim payment at a later stage. However, Mr Greensill has not yet made an application for a payment on account and it seems that, if it were to be made, the SoS will argue that an order for costs without a payment on account was one of the terms on which he conceded the paragraph 5 and 7 relief.

If the SoS’s argument on this point proves to be correct, it may well turn out to be the case that Mr Greensill is no longer entitled (whether by binding contract, estoppel or otherwise) to make an application for a payment on account. In short, and notwithstanding the usual order contemplated by CPR 44.2(8), the deletion of the original language, which was agreed without any express reservation of rights, means that it is very far from certain that any application by him for a payment on account by the SoS would succeed.

Mr Greensill also relied on Rawlinson & Hunter Trustees SA -v- ITG [2015] EWHC 1924 (Ch) in which Morgan J considered whether an interim payment should be awarded if there is a real prospect that a party’s entitlement to costs will be negated or diminished at some point in the future by reason of set-off. I agree that this is capable of being a factor which can go into the balance in many cases (see the analysis of Morgan J at [22] to [25]).

However, in my view this is not a weighty factor in a case such as the present where, unlike Rawlinson, the solvency of the SoS is not in issue. There is no doubt that the SoS will be able to pay any costs order made against him when it crystalises into an immediately payable liability and there is no doubt that he will be able to repay any amount which might in the future be determined as being in excess of the amount he should have received. In my judgment, Mr Greensill has not established that this is a case in which the usual rule under CPR 44.2(8) should not in principle apply.

As to quantum, Mr Greensill does not dispute that 50% is the appropriate percentage by which the costs said by the SoS to be attributable to the issues on which Mr Greensill lost should be reduced for the purposes of making a payment on account. In effect he accepts that a 50% reduction would reflect what he says is a reasonable estimate of the likely level of recovery subject to an appropriate margin to allow for error in the estimation (per Christopher Clarke LJ in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm) at [23]). To this extent there is no issue between the parties as to quantum.

However Mr Greensill challenges the SoS’s apportionment of the costs as between the issues on which Mr Greensill won (paragraphs 5 and 7) and those on which he lost. He says that 60% of his legal costs were incurred on the paragraph 5 and 7 issues and it cannot be correct that the SoS only spent 30% of the total bill on those costs, with the consequence that the starting point for the SoS’s recovery on the costs of the paragraph 1-4 issues should not be 70%.

Assessing the right figure can only be a relatively rough and ready exercise at this stage, but I approach my assessment in accordance with the principles laid down in Excalibur. Having done so, I do not agree with Mr Greensill’s submission.

Doing the best I can on the figures with which the court has been provided and taking into account (a) the extent of the work likely to have been carried out by the SoS’s legal team on the two different aspect of the application (b) the fact that the SoS’s costs overall are less than one third of the costs said to have been incurred by Mr Greensill and (c) the substantial 50% reduction as a margin for error in any event, I think that the 30% apportionment to issues 5 and 7 leads to the right answer. I shall therefore order a payment on account of £63,000.

The Defendant’s grounds of appeal challenge each aspect of my reasoning as to why section 6 of the CDDA does not require the SoS, as a matter of jurisdiction, to allege and prove that the director’s conduct relied on as constituting unfitness caused or was responsible for the causes of the company becoming insolvent. The application does not assert that I misunderstood or did not deal with any of the arguments. It simply repeats the submissions with which I was presented at the hearing and contends that I was wrong to reject them.

Although it is certainly the case that the Defendant’s position could be characterised as raising a point of law of some importance, I reached a clear view that it was not correct (see para [47]). In my view the Defendant has no real prospect of persuading the Court of Appeal that the court has no jurisdiction to make a disqualification order under section 6 of the CDDA unless the SoS alleges and proves the causal link for which the Defendant contends. On an application under section 6, the extent of any such causal link is simply one of the factors to which the court must have regard when determining whether a person is unfit and, if they are, the length of any period of disqualification.

Having reached that conclusion it also follows that there is no other compelling reason for the appeal to be heard. If there is no real prospect of success, there is no need for any further clarification of the circumstances in which the SoS can bring a claim under section 6.

I am also asked to give permission to appeal on any order I may make in relation costs. As Mr Greensill did not oppose the principle of an order for costs being made against him in respect of the paragraph 1-4 issues, it would be wrong to grant permission to appeal against that order. If and in so far as Mr Greensill seeks permission to appeal against the order for payment on account and my refusal of the stay, I consider that the conclusions I have reached are well within the broad ambit of the discretion that is available to me. There is therefore no real prospect of Mr Greensill’s establishing that my orders are wrong.

In the light of these conclusions I am required by CPR 52.6(1) to refuse permission to appeal.

Mr Greensill also seeks a stay of any order for payment on account pending the making and determination of any application he may make for a payment on account in respect of the orders for costs made in his favour by the 5 March order. This is accompanied by an application for a stay pending appeal, both in relation to dismissal of the strike out application and in relation to the order for a payment on account of the costs of that application.

The test for a stay pending appeal is explained in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, in which Clarke LJ said (at [22]) that whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is “whether there is a risk of injustice to one or both parties if it grants or refuses a stay”. In the case of an application to stay a money judgment the court will ask: if a stay is refused what are the risks of an appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being unable to recover any monies paid from the respondent?

On this aspect of the application I do not think that a stay is warranted. I have no evidence one way or the other that there is any risk that, if a stay is granted and the appeal fails, the SoS will be unable to enforce the judgment. Set against that, the starting point is that an appeal does not itself justify a stay (CPR 52.16) and there is no evidence that Mr Greensill’s appeal might be stifled if a stay is granted. There is also no risk that, if the judgment for a payment on account is enforced in the meantime, he will be unable to recover from the SoS any sums that he has paid.

Mr Greensill also says that his application for a stay is made pending his own proposed application for a payment on account. He said that, if successful, he will then be able to apply for a set off under CPR 44.12, which is a right that he will lose if he is required to make a payment on account before he obtains his own order for a payment on account from the SoS.

For similar reason to those which I have already addressed when considering whether or not to order a payment on account in the first place, I do not think that a stay is justified. It is true that Mr Greensill will then lose the ability to apply for a set off in accordance with CPR 44.12, but in the circumstances of this case, I do not consider that it is just for the SoS to be required to await payment of the £63,000 to which he is now entitled pending the determination of an unissued (and contentious) application for which the necessary supporting evidence has not yet been filed.