Free Affidavit - District Court of Colorado - Colorado

Case 1:01-cv-02354-EWN

Document 69

Filed 03/21/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02354-EWN-MJW UNITEDGLOBALCOM,INC.; UIH ASIA/PACIFIC COMMUNICATIONS, INC.; AUSTAR UNITED COMMUNICATIONS, LIMITED; AUSTAR ENTERTAINMENT PTY LTD; CTV PTY LIMITED; AND STV PTY LIMITED, Plaintiffs, v. ROBERT G. McRANN Defendant.

PLAINTIFFS' SUBMISSION OF SUPPLEMENTAL AFFIDAVIT VERIFYING COSTS INCURRED IN AUSTRALIAN PROCEEDINGS

Plaintiffs UnitedGlobalCom, Inc., et al, ("UGC Parties"), submit the attached affidavit of Malcolm John Davis, dated March 21, 2007 (Exh. 1 hereto), to provide evidentiary support with respect to the amount of recoverable costs and fees incurred by the UGC Parties in defending against McRann's claims before the High Court of Australia ("HCA"), the Court of the Appeal ("CA"), and the Industrial Relations Commission of New South Wales in Court Session ("IRC"). Under Australian law, "costs" includes attorneys fees, and are recoverable by the prevailing party from the losing party, after going through a "cost assessment" process. As detailed below, the total amount of costs incurred in the three proceedings exceeds USD$800,000.

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Costs with Respect to HCA and CA As explained in Mr. Davis' affidavit, on May 18, 2006, the High Court of Australia issued orders to the effect that McRann pay the UGC Parties' costs in the HCA and CA proceedings. Davis Aff. ¶3. Under the procedure for obtaining a judgment for costs in Australia, the UGC Parties have retained a specialist cost consultant to provide advice and an opinion relating to recoverable costs. Davis Aff. ¶7(a). This consultant has prepared an itemized bill of costs for both the CA and HCA proceedings. The bill of costs for the CA proceedings totals AUD$128,207.95, or USD$99,463.72, at the current exchange rate. Davis Aff. ¶7(d)(i). An additional bill of costs for the cost assessment itself totals AUS$23,423.29, or USD$18,171.86. Davis ¶7(d)(ii). The bills of costs for the HCA proceedings totals AUD$323,456.84, or USD$250,937 at the current exchange rate. Davis Aff. ¶10(d). Relevant summary pages from these bills of costs are attached as Exhibits C and D of the Davis Affidavit. Efforts have been made to settle the amount of the cost award with Mr. McRann, which is a normal part of the process. Those settlement efforts did not bear fruit. Davis Aff. ¶10(b). It is undersigned counsel's understanding that absent a settlement, McRann will have an opportunity to object to the bill of costs, after which time, the UGC Parties will file an application for assessment of the bill of costs in the Supreme Court of New South Wales for assessment by a Cost Assessor appointed by the Chief Justice. The Costs Assessor, when satisfied that all submissions have been made, then determines the amount of reasonable costs

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(which includes disbursements) to be paid by the Costs Respondent to the Costs Applicant and issues a Certificate of Determination. When the Certificate of Determination has been issued, either party has 30 days in which to seek a review by a "Costs Review Panel" (consisting of two Senior Costs Assessors). Both reviewers must agree to vary the original Costs Assessor's determination in order for a variation to occur. At that point, the process is final and a judgment will be issued in favor of the UGC Parties for a sum certain relating to costs. Costs with Respect to IRC Proceedings As has been previously explained to the Court, because of the ruling of the HCA, the IRC cannot proceed to determine McRann's claims which remain before it. Davis Aff. ¶¶11-14. The matter, nonetheless, remains technically pending, or "on foot" before the IRC. McRann can voluntarily discontinue or withdraw his claims from the IRC. Davis Aff. ¶15. If such discontinuance occurs, a condition to such discontinuance likely would be payment of the UGC Parties' costs before the IRC. Davis Aff. ¶16. The UGC Parties' specialist costs consultant estimates the reasonable recoverable costs incurred by the UGC Parties in defending the IRC matter at AUD$603,274 or USD$468,020. See Davis Aff. ¶¶17-18 and Exh. E. The Court should note that this is not the total amount of the costs and fees incurred by the UGC Parties, but rather an estimate of what would be deemed recoverable after going through the costs assessment process. For example, the costs consultant estimated that only 75 percent of the actual legal fees incurred would be recoverable as reasonable costs. See Exhibit E to Davis Aff. At 2 (Letter of Alyson Ashe).

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Conclusion In conclusion, the Court should consider that the UGC Parties incurred approximately US$368,571 in recoverable costs in proceedings before the CA and HCA, which have not been reimbursed by McRann, and another US$468,020 which likely would be recoverable in the event McRann took the necessary steps to discontinue the proceedings which remain pending before the IRC. DATED: March 21, 2006 Respectfully submitted,

s/N. Reid Neureiter Ann B. Frick N. Reid Neureiter JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC 1050 17th Street, Suite 1500 Denver, CO 80265 (303) 685-4800 (303) 685-4869 (fax) ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on March 21, 2006, I electronically filed the foregoing PLAINTIFFS' SUBMISSION OF SUPPLEMENTAL AFFIDAVIT VERIFYING COSTS INCURRED IN AUSTRALIAN PROCEEDINGS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard G. (Chip) Sander SANDER INGEBRETSEN & PARISH, P.C. 633 17th Street, Suite 1900 Denver, CO 80202 E-mail: [email protected]

s/N. Reid Neureiter Ann B. Frick N. Reid Neureiter JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC 1050 17th Street, Suite 1500 Denver, CO 80265 (303) 685-4800 (303) 685-4869 (fax) ATTORNEYS FOR PLAINTIFFS

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