Appeal Costs Follow Event But No Costs Ordered For Mixed-Outcome Hearing Below

TURNER v COUPLAND CAVENDISH LIMITED [2025] EWHC 2112 (KB)

In Turner v Coupland Cavendish Limited [2025] EWHC 2112 (KB) the court addressed costs issues following the appellant’s successful appeal against the dismissal of his application for an order requiring responses to a Part 18 request. The respondent sought a stay pending a proposed Court of Appeal appeal, arguing irremediable harm, but the court refused, applying Edwards/Raubenheimer v Slater & Gordon UK Limited [2022] and finding no irreversible prejudice. On costs, the court applied CPR 44.2(2)(a), ordering the respondent to pay the appellant’s appeal costs (£14,057.76 after summary assessment, reduced from £16,915.36) and post-judgment costs (£2,422.08, down from £4,298.76), rejecting conduct-based arguments under CPR 44.2(2)(b). The court made no order for costs of the hearing below, given mixed success and the appellant’s breach of CPR 44 PD.9.5(4) in late service of costs schedules. Key adjustments included reducing Grade B fee earner rates for specific items, disallowing duplicative work, and aligning attendance costs with actual representation. The respondent was also ordered to reimburse costs paid under the November 2023 order. The total awarded was £16,479.84.

The fact that a step ordered in the proceedings cannot be undone is not the same as one which will cause irreparable harm if later reversed on appeal. This is not akin to a payment of money that might be difficult to recover, nor does it carry the same weight as, say, mandatory disclosure that could prejudice a party in subsequent proceedings. Furthermore, I find the reasoning in Edwards/Raubenheimer, to be highly persuasive. The purpose of such an order for further information is precisely to clarify matters.

Citations

Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 A stay pending appeal may be granted where there is a real risk of injustice or irremediable harm if the order is enforced before the appeal is determined. Department for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257 The test for the grant of a stay requires a careful assessment of whether not granting the stay would result in serious prejudice that cannot be compensated. Edwards/Raubenheimer v Slater & Gordon UK Limited [2022] EWHC 1091 (QB) Compliance with an order for further information does not ordinarily cause irreparable harm and may reveal whether an appeal is academic, thus militating against the grant of a stay. Tankard v John Fredericks Plastics Ltd [2008] EWCA Civ 1375 A solicitor is under a duty to disclose a commission received in connection with acting for a client in a costs context, promoting transparency and accountability in solicitor-client relations.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

The general rule under CPR 44.2(2)(a) is that the unsuccessful party will be ordered to pay the costs of the successful party, and this remains the default position unless the court exercises its discretion to make a different order under CPR 44.2(2)(b). [10, 13]
An issues-based costs order may be appropriate where a party has succeeded on some but not all issues within a single hearing, especially where each issue involved significant argument; in such cases, a ‘no order as to costs’ may be justified. [22]
A party’s failure to serve a statement of costs in accordance with CPR 44 PD 9.5(4) may justify refusing that party its costs, particularly where the failure is substantial, unexplained, and in breach of mandatory procedural rules. [22]
When summarily assessing costs, the court is entitled to depart from the costs claimed where items are excessive, duplicative, administrative, irrelevant to the issues, or charged at an unjustified grade; appropriate reductions will be made on an item-by-item basis. [23–36, 43–44]
Attendance at hearings and preparatory work should be charged by reference to the actual fee earner involved and their appropriate guideline hourly rate; misidentification or inflation of grades may lead to disallowance or reduction of costs. [36–37]

"The starting point is to consider what would have been the appropriate costs order had the Appellant succeeded on the Part 18 application in circumstances where (as was the case) he lost on the disclosure application; permission to appeal having been refused on this point. Thus, in effect and as the Respondent submits, the Appellant achieved a "win and a loss" within the same hearing, which points towards the appropriate outcome being no order as to costs. The amount of time and resource devoted to the arguments in relation to disclosure, reflected in the Judgment below, appear to me to be at least as significant as those which were directed towards the Part 18 request. If an issues-based cost order had been made, then parity would likely have been the outcome."

Key Findings In The Case

The Appellant was awarded the costs of the appeal in full, as he succeeded on all issues for which permission to appeal had been granted, and the Respondent’s arguments based on conduct did not warrant any reduction or alternative order under CPR 44.2(2)(b) [13].
The court made no order as to costs for the hearing before the Costs Judge, finding that the Appellant had only succeeded on the Part 18 request but not the disclosure application, creating an effective “win-loss” outcome that justified a neutral costs position; this was further supported by the Appellant’s failure to serve a costs schedule prior to that hearing in breach of CPR 44 PD 9.5(4) [22].
The Respondent was ordered to repay any sums previously paid by the Appellant pursuant to the earlier costs order of 15 November 2023, as the appeal had overturned the decision giving rise to it [14].
On summary assessment of appeal costs, the judge allowed a reduced amount of £14,057.76 (inclusive of VAT), making item-by-item reductions for excessive or unjustified entries, including instances of misgraded fee earners, duplicative or irrelevant work, and administrative tasks, in accordance with the principles of proportionality and reasonableness [23–36].
The costs claimed in relation to post-judgment work were similarly reduced, with the judge disallowing non-recoverable work and inflated rates, resulting in a final assessed amount of £2,422.08 (inclusive of VAT), again applying detailed scrutiny to each cost item [41–49].

"The omission of the request from the bundle for the appeal was rectified and did not, in my view, cause such prejudice or alteration to the appeal as to justify departing from the fundamental principle that costs follow the event where an appeal has been allowed. I am unable to accept the Respondent's contention that the Appellant's conduct, in itself, warrants an order for "no costs" or a reduction of the magnitude suggested (rather than a more modest adjustment to individual items in the cost schedule – see further below). The Appellant succeeded on the appeal and is entitled to its costs."

Back in June, we examined the substantive appeal in Turner v Coupland Cavendish Limited [2025] EWHC 1605 (KB), where the High Court established important principles about Part 18 requests and solicitors’ obligations to answer questions about potential commissions. Now, six weeks later, Mr Justice Sweeting has delivered his judgment on the consequential matters – and the costs decisions provide equally valuable lessons for practitioners.

When an appellant succeeds on appeal but had mixed success below, how should the court approach costs? This follow-up judgment provides detailed guidance on costs orders following split outcomes, the impact of procedural failings on summary assessment, and the granular approach courts take when assessing individual items in costs schedules.

Background | The £750 Question

As readers of our earlier post will recall, the costs determination arose from a dispute over a Part 18 request seeking information about a £750 “success fee” payment made to AJG Limited, a Gibraltar company owned by the respondent firm’s Chief Executive. The appellant had succeeded on appeal in obtaining an order for the information to be provided, having previously achieved mixed success before Senior Costs Judge Rowley (winning on the Part 18 issue but losing on a disclosure application).

The Stay Application | A Costs-Adjacent Issue

Before addressing costs, the court dealt with the respondent’s application for a stay pending a proposed appeal to the Court of Appeal. While not strictly a costs matter, this had significant implications for the costs orders that would follow.

The respondent argued that information, once provided, “cannot be erased” and that compelling disclosure would cause “irremediable harm” if their appeal succeeded. Mr Justice Sweeting rejected this, distinguishing between steps that cannot be undone and those causing irreparable harm:

“The fact that a step ordered in the proceedings cannot be undone is not the same as one which will cause irreparable harm if later reversed on appeal.”

The stay was refused, clearing the way for the costs determinations.

Costs of the Appeal | Conduct Matters, But Not That Much

The respondent sought to depart from the general rule that costs follow the event, arguing the appellant’s conduct warranted either no order as to costs or a 50% reduction. The main complaint? The appellant had failed to include the Part 18 request in the bundle for the hearing below and only rectified this by filing a supplemental bundle two days before the appeal.

Mr Justice Sweeting was unmoved:

“The omission of the request from the bundle for the appeal was rectified and did not, in my view, cause such prejudice or alteration to the appeal as to justify departing from the fundamental principle that costs follow the event where an appeal has been allowed.”

The judge found that while there had been procedural failings, they didn’t justify a wholesale departure from the general rule. However, these failings would be reflected in the summary assessment of individual items.

Costs of the Hearing Below | The “Win and Loss” Analysis

The most interesting costs decision concerned the hearing before Senior Costs Judge Rowley. The appellant had succeeded on the Part 18 application but failed on disclosure – what the respondent characterised as a “win-loss” outcome.

The judge’s analysis was pragmatic:

“The amount of time and resource devoted to the arguments in relation to disclosure, reflected in the Judgment below, appear to me to be at least as significant as those which were directed towards the Part 18 request. If an issues-based cost order had been made, then parity would likely have been the outcome.”

Adding weight to this conclusion was the appellant’s breach of CPR 44 PD.9.5(4) – the statement of costs for the hearing below was dated 17 July 2025, nearly two years after the September 2023 hearing. The result: no order as to costs for the hearing below, though the respondent would repay costs already paid by the appellant under the November 2023 order.

Summary Assessment | The Devil in the Detail

Three statements of costs were assessed:

First Statement (Appeal Costs): £16,915.36 claimed, £14,057.76 allowed

Key reductions included:

Drafting Appellant’s Notice: Reduced from £1,268.50 to £816 (described as “high” for a single document)
Reviewing irrelevant witness statement: £190.40 disallowed entirely
Instructions to counsel: Reduced from £652.80 to £408 (2.4 hours deemed excessive)
Mr Carlisle’s preparation: £275 disallowed as he didn’t attend the hearing

The judge was particularly careful about fee earner rates, adjusting claims where the wrong grade had been used. When a Grade D fee earner attended instead of the Grade B fee earner identified in the schedule, rates were adjusted accordingly.

Second Statement (Post-Judgment Costs): £4,298.76 claimed, £2,422.08 allowed

The main reduction was the complete disallowance of £550 claimed for reviewing an attendance note from the hearing – deemed duplicative as the firm’s representative had attended.

Third Statement (Hearing Below): No assessment required

As no order for costs was made for the hearing below, this £9,598.32 claim fell away entirely.

Practical Implications

This case reinforces several important principles for costs practitioners:

Mixed success requires careful analysis: Where parties achieve split outcomes, courts will look closely at the relative time and resources devoted to each issue. An issues-based assessment might well result in costs neutrality.

Procedural breaches have consequences: Failing to serve statements of costs in accordance with CPR 44 PD.9.5(4) can tip the balance against a costs order, particularly in borderline cases.

Conduct arguments need substance: Minor procedural failings that don’t materially affect proceedings won’t justify wholesale departures from costs following the event, though they may influence item-by-item assessment.

Summary assessment is granular: Judges will scrutinise individual items, particularly where work appears duplicative, administrative, or where the wrong fee earner grade is claimed.

Document your attendance: Claiming preparation time for hearings you don’t attend is a non-starter, as Mr Carlisle discovered to the tune of £275.

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