Federal Court of Australia

Four Air Leitchville Pty Ltd v Hurlad Pty Ltd (No 5) [2026] FCA 1522

ORDERS

THE COURT ORDERS THAT:

1.    The third and fourth respondents pay to the applicant, in respect of its costs concerning proof of the third matter that was the subject of its notice to admit served on 30 March 2020:

(a)    50% of such costs as were incurred prior to 7 February 2023; and

(b)    all such costs incurred thereafter,

such amounts to be assessed on a party and party basis.

2.    The applicant pay what are otherwise the third and fourth respondents’ costs of the proceeding on a party and party basis.

3.    The applicant pay the respondents’ costs of and pertaining to the third and fourth respondents’ cross-claim on a party and party basis.

4.    The costs that are the subject of orders 1, 2 and 3 above are to be assessed, if not agreed, in lump sums by a registrar of the court in accordance with the procedure in orders 6 to 9 below.

5.    The sum of $536,500.00 paid into court as security for the third and fourth respondents’ costs be immediately released to the third and fourth respondents.

6.    By 4.00pm on Friday, 20 November 2026 and in accordance with paragraphs 4.10-4.12 of the court’s Costs Practice Note (gpn-costs) (the “Practice Note”):

(a)    the third and fourth respondents jointly file and serve, with leave, a costs summary not exceeding 15 pages (the “Interair Costs Summary”);

(b)    the first and second respondents jointly file and serve, with leave, a costs summary not exceeding 15 pages (the “Hurlad Costs Summary”); and

(c)    the applicant file and serve, with leave, a costs summary not exceeding 15 pages (the “FAL Costs Summary”).

7.    By 4.00pm on Friday, 18 December 2026:

(a)    the applicant file and serve any affidavit in response to the Interair Costs Summary and/or the Hurlad Costs Summary; and

(b)    the third and fourth respondents jointly file and serve any affidavit in response to the FAL Costs Summary.

8.    By 4.00pm on Friday, 5 February 2027, the parties file and serve any short written submissions (not exceeding 3 pages) addressing the law as to costs on relevant issues in accordance with paragraph 4.15 of the Practice Note.

9.    The parties have liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    On 24 July 2026, the court pronounced its substantive judgment in this matter: Four Air Leitchville Pty Ltd v Hurlad Pty Ltd (No 4) [2026] FCA 976 (Snaden J) (the “Substantive Judgment”). Amongst other things, the applicant’s originating application dated 24 February 2020 was dismissed, as was a cross-claim pressed by the third and fourth respondents (the “Interair Parties”) against the first and second respondents (the “Hurlad Parties”). An order was made requiring that the parties confer on the question of costs, following which additional orders were made programming that issue for determination.

2    Thereafter and in accordance with the court’s most recent orders, the parties filed additional affidavit evidence and submissions directed to the question of costs. For the reasons that follow, I have determined to order substantively as follows, namely that:

(1)    the Interair Parties are to pay to the applicant (“FAL”) its costs concerning proof of the third matter that was the subject of its notice to admit served on 30 March 2020, namely:

(a)    insofar as such costs were incurred prior to 7 February 2023, 50% thereof; and

(b)    its costs incurred in that regard thereafter,

such amounts to be assessed on a party and party basis and as a lump sum to be determined by a registrar of the court if not agreed;

(2)    FAL is to pay the Interair Parties’ costs of defending its originating application on a party and party basis, in a sum to be determined by a registrar of the court on a lump sum basis if not agreed;

(3)    FAL is to pay the respondents’ costs of and pertaining to the Interair Parties’ cross-claim on a party and party basis and in a sum to be determined by a registrar of the court on a lump sum basis if not agreed; and

(4)    the security held by the court in respect of the Interair Parties’ costs of the proceeding is to be immediately released to the Interair Parties.

3    Happily, my preference for orders in those forms is straightforward and does not require reasons anywhere near as long or delayed as those that accompanied the Substantive Judgment. It is convenient to deal separately with costs in two constructs: those arising from the Interair Parties’ successful defence of FAL’s originating application; and those arising from the Interair Parties’ cross-claim.

4    Insofar as concerns the costs of and pertaining to the originating application, the complications are minimal. The Hurlad Parties’ costs in that regard were the subject of an accepted compromise reached in February 2023. There is no occasion to make any order in their favour as against FAL in respect of its originating application. The Interair Parties’ costs should follow the event, as FAL properly accepts; but there is an issue as to the basis upon which they might be calculated. I will address that issue first.

5    Rule 25.14(2) of the Federal Court Rules 2011 (Cth) (the “FC Rules”) provides as follows:

25.14     Costs where offer not accepted

…

(2)     If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:

(a)     before 11.00 am on the second business day after the offer was served—on a party and party basis; and

(b)     after the time mentioned in paragraph (a)—on an indemnity basis.

…

6    The Interair Parties rely upon a notice of offer to compromise that was served upon FAL on or around 1 April 2025. By that notice and accompanying correspondence, they offered to settle FAL’s claims against them on the basis that they be paid what FAL had already paid as security for costs (namely, $536,500.00). Plainly, the offer was not accepted; and the Interair Parties now seek their costs from 11.00am on 3 April 2025 on an indemnity basis. What now falls for the court’s consideration is whether FAL’s failure to accept the offer can be impugned as unreasonable.

7    The purpose of the principles that govern Calderbank offers and offers of compromise in accordance with the rules of the court is to ensure that, when one party makes another an offer that contains a genuine element of compromise, the recipient is compelled to give real consideration to the costs and benefits of prosecuting its claim, and, in particular, the prospect that it might suffer an order for indemnity costs should its failure to accept prove unreasonable: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141, [19] (Gilmour, Jagot and Nicholas JJ).

8    By their written submissions, the Hurlad Parties made the following relevant observations of principle, which I gratefully adopt as though my own (references omitted):

12.    An imprudent refusal of an offer to compromise justifies an award of indemnity costs. The question is whether the refusal was unreasonable in the circumstances existing when the offer was rejected, having regard to the stage of the proceeding, the time allowed to consider the offer, the extent of the compromise, the offeree’s prospects assessed at that date, the clarity of the offer’s terms, and whether it foreshadowed an indemnity costs application.

13.    A refusal is unreasonable if it is not guided by good sense or sound judgment; no especially high standard applies, and “unreasonable” is synonymous with “imprudent”. Nor is an offer a demand to capitulate merely because the sum offered is modest: where a party rightly assesses that the claim against it will fail, a nominal offer supported by a reasoned explanation is an appropriate way of managing its exposure to irrecoverable costs, and one the offeree ought reasonably to accept.

14.    Under … r 25.14(2) [of the FC Rules], where an offer of compromise is not accepted unreasonably and the offeree’s proceeding is dismissed, the offeror is entitled, unless the Court otherwise orders, to party and party costs before 11.00 am on the second business day after service, and indemnity costs thereafter. Similar principles apply for Calderbank offers, yet without the presumption of indemnity costs in r 25.14.

9    Presently, I do not consider that FAL’s rejection of the Interair Parties’ offer of 1 April 2025 can be impugned as unreasonable. It may, of course, be accepted that the correspondence under which the Interair Parties’ offer was served outlined the reasons why FAL’s claims would be rejected; reasons that history has since vindicated. But so to acknowledge is not to recognise—and still less is it contended—that FAL’s claim was untenable. There were triable issues for the court to determine; a reality whose proof inheres at least in the lengthy reasons that accompanied the Substantive Judgment. Moreover, the offer that the Interair Parties served did not present much in the way of compromise. It was not an offer to pay FAL anything; but, rather, to accept payment from FAL of more than half a million dollars. It seems that the Interair Parties’ costs were more than that at the time (and, hence, that there was at least some element of compromise to the offer); nonetheless, it is difficult to conceive of the offer as an objectively serious or attractive one whose rejection the court might now, with the benefit of hindsight, impugn as unreasonable. It was not unreasonable for FAL to press ahead with its case given the alternative that the Interair Parties offered.

10    There is one additional complication concerning the payment of costs of FAL’s application as between FAL and the Interair Parties. In March 2020, FAL served upon all of the respondents notices under r 22.01 of the FC Rules, inviting them to make certain admissions; specifically (and at the risk of over-simplifying), that the aircraft that was the primary subject of the litigation was unairworthy at particular times of relevance to the proceeding. In particular, the notice served upon the Interair Parties sought the following by way of admission, namely:

1.    That the 1982 Fairchild Merlin IIIC aircraft serial number TT-474 and registration VH-RCI (the Aircraft) the subject of this proceeding was not airworthy as at the time of completion of the pre purchase inspection by the third and fourth respondent[s] on 6 November 2017.

2.    That the Aircraft the subject of this proceeding was not airworthy at the time of handing over the Aircraft and completing the sale on 11 December 2017.

3.    That not all of the required C and D checks and inspections under the M7 Aerospace Letter Check Inspection Program had been carried out on the Aircraft.

11    Each of the notices was met with a corresponding notice of dispute under r 22.02. Ultimately, the assertions were established.

12    Rule 22.03 of the FC Rules provides as follows, namely:

22.03     Disputing party to pay costs if document is proved etc

If a party serves a notice of dispute under rule 22.02 and the truth of any fact or the authenticity of any document disputed in the notice is proved, the party that served the notice of dispute must pay the costs of proving the truth of the fact or the authenticity of the document.

13    During the course of oral submissions, senior counsel for the Interair Parties handed up two authorities on the application of r 22.03: Kapeli v Secretary, Department of Home Affairs (No 2) [2024] FCA 1450 (“Kapeli (No 2)”) and Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 5) [2025] FCA 1427 (“Abbey (No 5)”).

14    The former concerned the costs of an unsuccessful application for habeas corpus brought by Mr Kapeli, who was being held in immigration detention. It was predicated upon his claim to be an Aboriginal Australian: Kapeli v Secretary, Department of Home Affairs (2024) 307 FCR 364. Relevantly, Mr Kapeli contended that he ought be entitled to the costs of proving a fact that was the subject of a notice to admit—namely, that he was recognised as an Aboriginal Australian by that community—which he claimed had ultimately been conceded by the respondents and accepted by the court: Kapeli (No 2), [6] (O’Bryan J). Justice O’Bryan noted that the asserted fact was “stated in a conclusory manner which intermingle[d] assertions of fact and law” and held that it was, in any event, neither so conceded nor so accepted, such that r 22.03 had no application: Kapeli (No 2), [17].

15    The latter case, Abbey (No 5), relevantly concerned an applicant’s costs of proving certain elements of its case that were the subject of a notice to admit and that the respondent only admitted after receiving the applicant’s evidence. Justice Jackman held that this was a reasonable course for the respondent to have taken, as the facts were not within its knowledge and, thus, it was reasonable for them to wait and see what the applicant’s evidence was before making admissions: Abbey (No 5), [5].

16    Relying on these authorities, the Interair Parties submitted that the question of “airworthiness” lacked a fixed meaning and was properly described as a mixed question of fact and law that was not amenable to inclusion within a notice to admit. It was also submitted that the third admission that they were invited to make—namely, that “… not all of the required C and D checks … had been carried out …”—was not particularised in a way that highlighted any specific “C” and “D” check(s) to which the subject aircraft ought to have been subjected. Further, they maintained that the subject of the required admission did not obviously marry with what was asserted within FAL’s statement of claim. In those circumstances, it was said that it was not unreasonable for the Interair Parties to dispute that matter either.

17    At least as far as concerns the first two admissions sought of the Interair Parties, those submissions have some force. To be clear, the airworthiness of the aircraft in November and December of 2017 was a question that bore upon the causes of action that FAL pressed against all four respondents. Indeed, it was the common position of the parties at least by the conclusion of the hearing—and my reasons in the Substantive Judgment reflect—that the aircraft was not airworthy at those times. But the centrality of that question does not transform the first two admissions sought by FAL into “facts” of a kind that lent themselves to the process envisaged by r 22.03.

18    As framed, the first two admissions sought of the Interair Parties were not within their gift to make. They were not, in the relevant sense, “facts” which could be admitted, or in respect of the dispute of which costs consequences might arise: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [2001] FCA 227, [6] (Gyles J). They were instead matters of fact and law presented in a conclusory and rolled-up way: Kapeli (No 2), [17] (O’Bryan J); Akibou Yacouba v Key Assets the Children’s Services Provider (Australia) Ltd [2025] FCA 614, [11] (Banks-Smith J), citing Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602, [58] (Goldberg J).

19    That being so, I do not consider that there is occasion to visit upon the Interair Parties liability for costs associated with the establishing of the first two matters that were the subject of FAL’s notice to admit.

20    The same cannot be said for the third admission that FAL’s notice invited. Whether or not all of the required “C” and “D” checks had been carried out was a question of fact: the checks either had been carried out or they hadn’t been. That, in turn, informed the wider factual and legal question concerning whether or not the aircraft was airworthy.

21    Senior counsel for the Interair Parties submitted that the admission sought was much broader than the pleaded claim and was not particularised in a way that identified any particular “C” or “D” check. I do not consider that anything turns upon that. It remains that the Interair Parties disputed facts that FAL then successfully established in the service of a broader contention (namely, that the subject aircraft was not airworthy). The Interair Parties must, by operation of r 22.03, properly bear the costs that FAL incurred as a result of that dispute. That entitlement endures as against the Interair Parties, notwithstanding the failure of the causes of action to which the proof pertained. For completeness, I note that the Interair Parties’ award of costs in the cause does not entitle them to the costs that they incurred in resisting what, by the analysis above, they ought to have admitted: Peterson v Merck Sharp & Dohme (Australia) Pty Ltd (No 5) (2010) 87 IPR 234, 250 [60] (Jessup J).

22    There is a complication though. On 7 February 2023, terms were agreed in settlement of the claims that FAL pressed against the Hurlad Parties. They included a term in settlement of FAL’s entitlement to claim costs as against them. There is no doubt that some of the costs that were the subject of that compromise were incurred towards proof of the third matter that was the subject of the notice to admit that was served on the Interair Parties in March 2020. To permit FAL to recover the entirety of those costs from the Interair Parties would be to endorse a form of double recovery.

23    Instead and insofar as concerns FAL’s costs of and pertaining to the proof of the third matter that was the subject of the notice to admit served upon the Interair Parties on 30 March 2020, I will order that the Interair Parties pay those costs insofar as they were incurred after 7 February 2023; and pay one half of those costs insofar as they were incurred before then.

24    That suffices to address the costs of FAL’s originating application dated 24 February 2020. I turn, then, to the costs of the Interair Parties’ cross-claim. It is necessary to recount its essential features. By its suit against the Interair Parties, FAL pressed a claim to relief under s 29(1)(a) of the Australian Consumer Law (the “ACL”). A claim of that nature is not an “apportionable claim” for the purposes of pt VIA of the Competition and Consumer Act 2010 (Cth), nor under state legislative equivalents. A respondent to such a claim may find itself liable for the entirety of losses sustained on account of conduct in which it engaged in contravention of that provision, even where another party or other parties might also have contributed to them. The practical consequence for a respondent facing that predicament is that it might need to mount a claim of its own against the other contributing party or parties.

25    That is precisely what the Interair Parties did. Their cross-claim of 12 December 2022 was a prophylactic measure, intended to share with the Hurlad Parties any liability that FAL might successfully have established in respect of conduct offensive to s 29(1)(a) of the ACL. It was, to my eye, a reasonable—and, indeed, a reasonably necessary—reaction to the claims that FAL pressed under that section.

26    In Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448, 450 [8], King CJ (with whom Mullighan J agreed; Bollen J agreeing in the result) observed:

Where the nature of the plaintiff’s claim, or allegations in support thereof, render it reasonable, having regard to the purposes of third party procedure, to bring in the third party, and the third party claim is unsuccessful solely by reason of the failure of the plaintiff to sustain its claim or the relevant allegations, the defendant should ordinarily recover from the plaintiff the costs of the third party claim including those which the defendant is ordered to pay to the third party. The emphasis is on the word “ordinarily”. The discretion is unfettered and a variety of factors may properly enter into the exercise of it.

27    It has been said that that approach “is expressed too emphatically”: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040, [16] (Jagot J) (“NSW Ports”); see equivalent observations in Furber v Stacey [2005] NSWCA 242, [32]-[34] (Hodgson JA), [114]-[115] (Einstein J) (“Furber”). Nonetheless, an outcome consistent with what King CJ identified would “ordinarily” be appropriate will be warranted where the interests of justice require it: NSW Ports, [16] (Jagot J); Furber, [31] (Hodgson JA). Those interests inevitably turn upon consideration of prevailing circumstances, including the relationship between a third-party claim (or, as here, a cross-claim) and the action brought against the party who commences it, and the extent to which the third-party (or cross-) claim raises private issues unrelated to the primary suit: Furber, [57] (Hodgson JA, with whom Einstein J agreed at [113]-[115]).

28    I consider that the interests of justice warrant that FAL be made liable for the costs consequences that have arisen from the Interair Parties’ cross-claim. Those consequences assume two forms: first, the Interair Parties were put to the expense of pressing the contribution claim that was pressed; and, second, the Hurlad Parties were put to the expense of successfully defending it. Both were, in reality, species of costs incurred as an incident of the unsuccessful suit that FAL mounted against the Interair Parties.

29    That headline conclusion stated, two ancillary questions arise, each of which relates to the Hurlad Parties’ costs of the Interair Parties’ cross-claim. The first concerns the basis or bases upon which the court might make orders for those costs. The second concerns the appropriate form of orders by which liability for the costs should sheet home to FAL.

30    I should deal first with the basic proposition: the Interair Parties’ cross-claim failed and, in consequence of that failure, the Hurlad Parties are entitled to an order for costs in their favour. There shall be one; but on what basis and how should it operate?

31    The evidence before the court presently establishes that the Hurlad Parties made four offers to settle the Interair Parties’ cross-claim. It is unnecessary to particularise them, save to observe that:

(1)    three of them were offers made to the Interair Parties (one of which was copied to FAL), by which the Hurlad Parties proposed to pay sums ranging from $20,000.00 to $50,000.00;

(2)    the other was an offer to pay FAL $5,000.00 in return for its withdrawing its claim against the Interair Parties under s 29(1)(a) of the ACL (that offer was extended concurrently with an offer to the Interair Parties to discontinue their cross-claim without any orders as to costs in the event that FAL were to oblige).

32    Plainly, none of those offers was accepted.

33    It is not clear what the court should make of the offer that the Hurlad Parties made to FAL. FAL, of course, was not a party to the Interair Parties’ cross-claim. The claim to relief under s 29(1)(a) of the ACL that the Hurlad Parties invited it to withdraw was not relevantly a claim that it pressed as against them. It was not what might conventionally be described as an offer of compromise.

34    The more significant question requiring the court’s consideration is whether any special costs order is warranted on account of the monetary offers that the Hurlad Parties extended without success to the Interair Parties. Knowing what they now know about the outcome of the proceeding, the Interair Parties would clearly have been better off had they accepted one of those offers. Should that suffice to entitle the Hurlad Parties to their costs of defending the cross-claim, calculated on an indemnity basis?

35    The answer to that question falls to be determined according to the principles already rehearsed above: can it be said that the Interair Parties unreasonably rejected the offers to settle that the Hurlad Parties extended? Admittedly with some hesitation, I do not consider that it can.

36    FAL claimed as against the Interair Parties damages in the vicinity of $500,000.00 (or, late in the trial, closer to $900,000.00). As I have already observed, the issues that it pressed were triable. It was, as has also been observed, reasonable for the Interair Parties to protect themselves by reserving an entitlement to claim an indemnity or contribution in respect of the extent to which FAL might have succeeded on its claim under s 29(1)(a) of the ACL. Had they accepted any of the offers that the Hurlad Parties made and then later been found liable for the non-apportionable loss that FAL sought to recover from them, the Interair Parties might well have been significantly worse off for that acceptance than could otherwise have endured.

37    In circumstances where there remained some prospect that FAL might succeed against them, it was not unreasonable for the Interair Parties not to compromise their ability to seek indemnity or contribution in sums that might well have exceeded—indeed, far exceeded—what the Hurlad Parties had offered. That reality is not altered with the benefit of hindsight (and its having transpired ultimately that there was no liability in respect of which any indemnity or contribution was necessary).

38    It was suggested in written submissions that a special costs order might be warranted because it was unreasonable for FAL to maintain its claim under s 29(1)(a) of the ACL. Beyond general notions of judicial discretion, it is not apparent why unreasonableness on the part of FAL should inform whether or not (or the extent to which) the Interair Parties were justified in failing to settle their cross-claim on terms that the Hurlad Parties extended. But even leaving that to one side, I am not persuaded that it was unreasonable for FAL to pursue the case that it pursued under s 29(1)(a) of the ACL. It was suggested (including in correspondence that was sent to FAL ahead of the trial) that the non-apportionable claim was of no marginal value to FAL (in the sense that it did not add to its other claims). That is unsustainable. It was not unreasonable for FAL to seek to recover the whole of its loss (or at least, so much of it as was not recovered by its settlement with the Hurlad Parties) via a non-apportionable claim against the Interair Parties and to leave questions of contribution or indemnity for others to work out.

39    To summarise then: both the Interair Parties (on the one hand) and the Hurlad Parties (on the other) should be entitled to recover the costs that they incurred in consequence of the Interair Parties’ cross-claim. In each case, those costs should be recovered on a party and party basis.

40    All that remains is to determine orders appropriate to deliver the outcomes just summarised. In the case of the Interair Parties’ costs, the relief is straightforward: those costs should be made payable by FAL on a party and party basis, and in a lump sum amount to be determined by a registrar of the court.

41    In the case of the Hurlad Parties’ costs, it appears that there are two options available to the court: the first is to make what is generally known as a Bullock order (consistently with the kind that was made in Bullock v London General Omnibus Co [1907] 1 KB 264 (Collins MR, Cozens-Hardy and Farwell LJJ)); the second, to make what is generally known as a Sanderson order (consistently with the kind that was made in Sanderson v Blyth [1903] 2 KB 533 (Vaughan Williams, Romer and Stirling LJJ)). In simple terms, both serve to visit upon FAL liability for the costs that the Hurlad Parties incurred in their successful defence of the Interair Parties’ cross-claim. A Bullock order would secure that via a requirement that FAL indemnify the Interair Parties for the costs that the Hurlad Parties should be permitted to recover from them. A Sanderson order would require that those costs be paid directly by FAL (bypassing the Interair Parties altogether).

42    FAL submits that it should not be open to make any order that requires that it pay any amount for costs to the Hurlad Parties. Such an order, it says, would be inconsistent with the terms of settlement that were struck as between those parties on 7 February 2023. I reject that contention. That settlement was reached “[i]n full and final settlement of the Claims made by FAL against Hurlad and Mr Bullas in the Proceeding (but not…the Claims the subject of the cross-claims between Hurlad and Bullas (on one hand) and Interair and Shapanis (on the other))”. The settlement terms do not foreclose upon an order that would require FAL directly to cover the Hurlad Parties’ costs of successfully defending the Interair Parties’ cross-claim.

43    Presently, the preferable course is to make a Sanderson order, by which the Hurlad Parties’ costs of defending the Interair Parties’ cross-claim should be payable directly by FAL. Relief in that form reflects what I have already observed about the character of that cross-claim: it was entirely contingent upon and responsive to FAL’s claims under s 29(1)(a) of the ACL. The overall failure of those claims should sound in FAL’s liability for the costs that all of the respondents incurred in relation to them (including those that arose by reason of the Interair Parties’ cross-claim).

44    There remain four other issues for the court to address. The first concerns the appropriateness of lump sum costs orders. It is uncontroversial that the court should make orders on that basis and I shall do so.

45    The second concerns the immediate release of the funds that FAL paid into court by way of security for the Interair Parties’ costs. At a level of generality, FAL does not oppose that course. However, it refers to what the Interair Parties have foreshadowed about the potential need for non-party costs orders; and suggests that the better course is for the court not to release the funds paid as security until such time as that prospect is clarified. I reject that contention. There is no reason why the amounts paid into court as security for the Interair Parties’ costs should not immediately be released to them and I will make an order to that effect.

46    The third matter is related. FAL submits that the court should impose a deadline for the making by the Interair Parties of any applications for non-party costs orders. That is put on the basis that the question of costs should be finally determined as efficiently as possible. Although that headline proposition could hardly be doubted, I do not consider that there is any need to impose hard deadlines. There may be all manner of reasons why such applications might not be appropriate in the short term. Equally, if applications are not brought with appropriate haste, that may inform the exercise of the court’s discretion. At least at this juncture, I am not minded to require that applications of the kind that have been foreshadowed be made within any specified time. Nor is it necessary expressly to reserve—as the Interair Parties request—the question of whether they ought to be made.

47    The final matter is one of logistics. At the costs hearing, it became apparent that minor disagreements prevailed concerning the timeframes within which the parties might progress the costs assessment process. I needn’t particularise them. A related issue arose concerning the costs summaries that the respondents will file and serve in consequence of the conclusions stated above. The Practice Note permits summaries of up to 10 pages’ length for “large or complex” cases like this one. The Interair Parties proposed that the respondents have leave to file longer costs summaries. Initially, no outer limit was suggested.

48    It seems to me that the practice note says what it says for a reason. I would not grant leave to permit, as I am asked to, the filing and service of summaries wholly untethered to any limit. Even accepting that this matter has run for an unusually long time and might properly be described as one of some complexity, I struggle to see much in the way of justification for an extension of what the practice note contemplates. I am left to proceed solely on the basis of what I was told was the extensive knowledge and expectations of experienced litigators.

49    That isn’t nothing; but I am not minded to grant more than a token indulgence. I will extend the limit for the costs summaries from 10 pages in length to 15. I will otherwise make timetabling orders consistent with the position that was discussed at the hearing.

Associate:

Dated:    16 October 2026

SCHEDULE OF PARTIES