GETTY IMAGES (US), INC & ORS V STABILITY AI LTD [2025] EWHC 3419 (Ch)

Late abandonment of substantial claims weighs heavily in identifying the overall winner for costs, though success on a discrete issue may still warrant a separate costs award in favour of the losing party.

• The identification of the overall winner of litigation is a matter of substance and reality, focusing on which party has been substantially denied the prize it fought to win, and while the potential for a money transfer is an important indicator, it is not the sole or necessarily determinative measure of success. [18, 19, 32-37]
• Where a party is the overall winner of litigation, it is entitled to recover all of its costs which are not, or cannot, be allocated to a specific issue, including general costs and overlapping ‘marginal’ costs. [27, 28, 41]
• In applying an issue-based costs approach, a ‘suitably circumscribed issue’ may be a standalone cause of action on which the overall losing party succeeded, and the appropriate order may require the overall winner to pay the other side’s costs of that issue, not merely forfeit its own. [42-46]
• Where a party has succeeded on a distinct issue but failed on several significant sub-issues within it, and the issues are overlapping, the court may reflect this by awarding that party only a proportion of its costs of that distinct issue, applying a broad-brush percentage deduction. [48-54]
• When determining an interim payment on account of costs for sums incurred above an approved budget, the court will consider whether the paying party is likely to establish a ‘good reason’ for the departure, and may award a cautious percentage (such as 20%) where the evidence suggests a better case for some phases of work than others. [66-74]