In cases which settle against multiple defendants, a claimant is entitled to seek 100% of non specific common costs against any one of those defendants, leaving those defendants to argue issues of apportiionment between themselves.
“These submissions have done nothing to persuade me not to take the course for which I said there was a prima facie case… I have already ruled that LP identified no good reason to resist the order agreed by the principal parties. LP was a party to the proceedings. They had procedural entitlements. But they also had responsibilities and ran risks.”
“…even if the more flexible approach contended for by the Claimant is applied, I do not consider it realistic to argue that the Claimant did better at trial than the offer. By going to trial he recovered £371,258.36 less in damages than the offer. Although by going to trial he also secured the peace of mind of the provisional damages for epilepsy, I accept the Second Defendant’s arguments that the additional £371,258.36 in the offer accommodated that claim. It follows that the Claimant did not beat the offer of £3,550,000 or the Second Defendant’s last offer £4,000,000.”
Following trial of a dispute about covenants in contracts, under which the claimant sought payment from the defendant, the Judge declared that on a true interpretation of the covenants no liability for payment had yet arisen.
In addition to the “interpretation issue” the defendants also run a series of other defences, including fraudulent misrepresentation, conspiracy, estoppel, title to sue, and allegations that the original sales had been part of an unauthorised collective investment scheme.
These other defences failed.
In this short judgment Mr Justice Cavanagh declined to make an issue-based costs order despite the claimant having been unsuccessful in two parts of his claim on the basis that the evidence which he had obtained and presented in support of these had not been wasted.
Having made findings at trial that the claimant had exaggerated his personal injury claim, specifically in respect of loss of earnings, Mr Justice Farby had to determine if, and to what extent, this should be reflected in the award of costs.
Prior to commencement of these public interest judicial review proceedings the parties had agreed that they recoverable costs on each side would be limited to the sum of £3,000. The proceedings were ultimately dismissed and the Appellant was ordered to pay 67% of the SSHD’s capped costs i.e. £2,000.
The Appellant appealed the substantive decision, unsuccessfully, to the Court of Appeal.
The SSHD cross appealed the order for costs on grounds that the judge erred in law by applying the reduction of 33% to the capped rather than the “much higher” actual costs of the SSHD, when calculating the amount of costs to be paid.
In a short judgment following trial at which the claimant was awarded damages of £126,841 against a claim for £1.5 million Mr Justice Martin Spencer rejected calls from the defendant to disallow a proportion of the claimant’s costs on the basis that the claim was exaggerated, unsupported by the evidence and unsustainable.
The Court was tasked with determining costs following a hard fought piece of commercial litigation in which the claimant was awarded US$5,388,312.08 of a US$63.5 million claim. Mrs Justice O’Farrell considered the various authorities and relevant principles to be applied when determining whether to make an issues based or proportional costs order before determining that the defendant should pay 85% of the claimant’s costs.