CPR 44.2(6)(f) | Costs In The Case Where Interwoven Issues And No Clear Winner Precludes Issue-Based Or Percentage Orders

Following a contested return date hearing involving multiple interlinking applications, the court ordered costs in the case. Issue-based and percentage orders were rejected as artificial where both parties achieved partial success on interwoven issues.

High Court costs order under CPR 44.2 where interwoven issues and mixed outcomes preclude issue-based costs allocation

VERTICAL AEROSPACE GROUP LIMITED V THANDIWE NGOMA [2026] EWHC 1449 (KB)

In Vertical Aerospace Group Limited v Thandiwe Ngoma [2026] EWHC 1449 (KB), Tom Little KC, sitting as a Deputy Judge of the High Court, ordered costs in the case following a contested Return Date at which the Defendant’s application to set aside an imaging order on grounds of failure of full and frank disclosure was refused, but the terms of the affidavit were varied appreciably in the Defendant’s favour, and the Claimant’s application for an interrogation order in relation to the Defendant’s electronic devices was refused, though the court declined the Defendant’s preferred approach to disclosure, producing a middle ground outcome. The Claimant contended it had succeeded overall and sought its costs, including the costs of the supervising solicitor and IT expert engaged in connection with the imaging order. The Defendant sought her costs of resisting the refused interrogation order application and argued any remaining costs should be costs in the case or costs reserved. Applying CPR 44.2, the court found no clear overall winner and that approximately 50% of hearing time had produced a positive outcome for each party. The court expressly considered but rejected an issue based costs order under CPR 44.2(6)(f) as the issues were too interwoven to separate without artificiality, and similarly declined a percentage based order or costs reserved. The decision illustrates the court’s approach where multiple interlinking applications produce mixed outcomes with no identifiable overall winner.
Link to full judgment

[10] All of the applications and arguments were interlinking and therefore it would not be appropriate to make individual costs orders on individual applications. The reality is that roughly 50% of time was spent on arguments which led to a positive outcome in some way for each side. Properly applying CPR 44.2 to the circumstances before me the appropriate costs order to make is costs in the case. I make clear that I considered whether the costs should be reserved or whether some part of the costs should be reserved. However, given what was contested in this case I do not regard that order as the correct one to make here.

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Key Points

  • Where multiple applications at a hearing are closely interlocking, such that the issues raised by each cannot meaningfully be separated from one another, an issue-based costs order under CPR 44.2(6)(f) will be inappropriate. The court should consider instead whether a proportionate costs order under CPR 44.2(6)(a) or a costs in the case order better reflects the overall outcome, consistent with the obligation in CPR 44.2(7) to consider alternatives to issue-based orders before making one. [7, 10]
  • Where neither party can be identified as the overall winner, and where the time spent at the hearing was divided roughly equally between arguments that produced a positive outcome for each side, the appropriate order will ordinarily be costs in the case rather than costs reserved. Costs reserved is not the correct order merely because the ultimate value of an interlocutory step to the litigation as a whole remains uncertain at the time costs fall to be determined. [10]
  • The fact that an applicant does not obtain relief in the precise terms sought does not of itself mean that the applicant has failed for costs purposes. Where the applicant has in substance achieved the evident purpose of its application, that outcome is a relevant circumstance to which the court must have regard under CPR 44.2(4)(b) when assessing which party succeeded on that issue. [5, 7]

[7] "I have considered making an issue based costs order but given how interwoven some of the issues were I have concluded that that would not be the appropriate order nor would any form of order which sought to attribute a particular percentage of costs. Indeed, seeking to separate out applications that went to the maintenance of and the terms of the imaging order is, in my judgement, wholly artificial on the facts of this case."

Key Findings In The Case

  • The judge determined that neither party emerged as the overall winner in the costs issue, with both the Claimant and Defendant succeeding and failing on different arguments. This lack of a clear winner influenced the decision to opt for a costs in the case order rather than identifying a single party responsible for costs. [7]
  • The Claimant’s inability to secure relief precisely as requested did not mean it failed for costs purposes. Despite not obtaining an ‘interrogation order,’ the Claimant substantively achieved the goal of its application by securing access to relevant material on the Defendant’s electronic devices, which was deemed a significant factor in evaluating costs. [5, 9]
  • The court found it inappropriate to make an issue-based costs order due to the interwoven nature of the applications and arguments presented by the parties. The interconnectedness of the issues made it impractical to attribute specific costs to individual applications or arguments. [7]
  • Both parties having secured positive outcomes for some of their arguments led to the conclusion that approximately 50% of the time was effectively divided between arguments yielding benefits for each party. This equitable division of outcomes reinforced the decision to order costs in the case rather than apportioning costs or reserving them. [10]
  • The Defendant’s application to set aside the imaging order due to alleged failures in full and frank disclosure was unsuccessful. However, the court did modify the terms of the required affidavit, indicating that neither party fully succeeded in their secondary objectives related to the imaging order. This outcome supported the decision against awarding costs to a single party. [8]

[8] "The reality is that both parties won certain arguments and lost certain arguments. I will not descend into granular detail about it but the Defendant's application to set aside the imaging order on the grounds of a failure of full and frank disclosure did not succeed. However, I varied the terms of the affidavit to be filed and served by the Defendant in terms appreciably narrower than had been sought by the Claimant and obtained originally by the Claimant."

The King’s Bench Division’s decision in Vertical Aerospace Group Limited v Thandiwe Ngoma [2026] EWHC 1449 (KB) addresses the appropriate costs order following a contested return date at which several interlinking applications were argued, including an application to set aside an imaging order and an application for an interrogation order.

Background

This judgment, handed down on 12 June 2026 by Tom Little KC sitting as a Deputy Judge of the High Court (King’s Bench Division), deals solely with the question of costs following an earlier substantive judgment in the same proceedings ([2026] EWHC 1096 (KB)).

The underlying claim was brought by Vertical Aerospace Group Limited against Thandiwe Ngoma. The substantive hearing took place on 29 April 2026, with judgment handed down on 8 May 2026. Following that hand down, the court heard initial argument on the terms of the order to be made, including some argument on costs. The court then directed the parties to serve sequential written submissions on the costs question, which were duly considered alongside the oral submissions already received.

The proceedings involved an imaging order obtained by the Claimant in relation to the Defendant’s electronic devices. The Defendant applied to set aside that imaging order on the grounds of an alleged failure of full and frank disclosure at the without notice stage. The Claimant, for its part, applied for what was described as an “interrogation order” in relation to those same devices. Both applications were contested, and the court was required to determine a number of interlinking issues arising from them.

Paul Nicholls KC appeared for the Claimant, instructed by Osborne Clarke LLP. Diya Sen Gupta KC and Nick Zweck appeared for the Defendant, instructed by Farrer and Co.

Costs Issues Before the Court

The court was required to determine the appropriate costs order following a contested return date hearing at which several distinct but closely related applications had been argued. The issues before the court on costs were, in broad terms, threefold.

First, whether the Claimant was entitled to its costs of obtaining and serving the imaging order, including the costs of the supervising solicitor and the IT expert engaged in connection with that order. The Claimant’s position was that those costs were directly attributable to the Defendant’s conduct and that the order had been upheld at the contested return date.

Second, whether the Claimant was entitled to its costs in relation to the electronic devices more broadly, on the basis that it had in substance achieved swift access to relevant material from those devices, even though its application for an interrogation order had been refused in the terms sought.

Third, whether the Defendant was entitled to her costs of resisting the interrogation order application, which had been refused by the court, and whether any remaining costs should be costs in the case or costs reserved pending a clearer picture of the value of the imaging order to the litigation as a whole.

The court approached the question by reference to CPR 44.2, which sets out the general rule that the unsuccessful party pays the costs of the successful party, whilst preserving the court’s discretion to make a different order having regard to all the circumstances, including the conduct of the parties and the extent to which each party succeeded on particular issues.

The Parties’ Positions

The Claimant submitted that, on a proper analysis, it had succeeded in its applications and in resisting the Defendant’s application, and that it should therefore recover its costs. More specifically, it argued that the costs of obtaining and serving the imaging order, including the costs of the supervising solicitor and the IT expert, fell to be paid by the Defendant. The basis for this was that the imaging order had been obtained as a direct consequence of the Defendant’s conduct and had been upheld at the contested return date. As to the electronic devices more broadly, the Claimant submitted that it had in substance achieved its evident purpose, namely swift access to relevant material well in advance of standard disclosure, even if the interrogation order had not been granted in the terms sought.

The Defendant submitted that the Claimant’s application for an interrogation order had been refused and that she should have her costs of that application. As to the remaining costs, the Defendant argued that they should either be costs in the case or costs reserved. The basis for the costs reserved argument was that it was said to be premature for the court to assess costs without knowing the ultimate value of the imaging order to the litigation as a whole.

The Court’s Decision

The court concluded that there was no clear overall winner and that both parties had succeeded on certain arguments whilst losing on others. The court considered making an issue-based costs order under CPR 44.2(6)(f) but declined to do so on the basis that the issues were too interwoven to be separated out in any meaningful or non-artificial way. The court also declined to make any order attributing a particular percentage of costs to either party, for the same reason. It was noted that seeking to separate out applications that went to the maintenance of and the terms of the imaging order would be wholly artificial on the facts of this case.

On the specific outcomes, the court noted the following. The Defendant’s application to set aside the imaging order on grounds of a failure of full and frank disclosure did not succeed. However, the terms of the affidavit to be filed and served by the Defendant were varied in terms appreciably narrower than had originally been sought and obtained by the Claimant. The Claimant’s application for an interrogation order in relation to the electronic devices was refused, but the court did not adopt the approach to disclosure invited by the Defendant either. The eventual outcome on that issue was described as very much a middle ground.

Having applied CPR 44.2 to those circumstances, the court determined that the appropriate order was costs in the case. The court expressly considered whether costs should instead be reserved, or whether some part of the costs should be reserved, but concluded that neither of those alternatives was the correct order on the facts. The court’s reasoning was that roughly 50% of the time at the hearing had been spent on arguments that led to a positive outcome in some way for each side, and that the interlinking nature of all the applications and arguments made individual costs orders on individual applications inappropriate.

The order drawn up accordingly provided for costs in the case.

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VERTICAL AEROSPACE GROUP LIMITED V THANDIWE NGOMA [2026] EWHC 1449 (KB) | TOM LITTLE KC | CPR 44.2 | COSTS IN THE CASE | DISCRETIONARY COSTS ORDERS | ISSUE BASED COSTS ORDER | PROPORTIONATE COSTS AWARD | INTERROGATION ORDER REFUSAL | IMAGING ORDER | FULL AND FRANK DISCLOSURE | DEFENDANT’S ELECTRONIC DEVICES | COSTS OF SUPERVISING SOLICITOR | COSTS OF IT EXPERT | ORDER VARIATION | NO CLEAR WINNER | INTERLINKED APPLICATIONS | ARGUMENT INTERDEPENDENCE | MIDDLE GROUND OUTCOME