Appellate courts will rarely disturb a trial judge’s discretionary costs order absent clear error of principle, even where parties dispute issue-based assessments, as demonstrated in this High Court appeal dismissing challenges to a 50/50 costs split.
- An appellate court will rarely interfere with a trial judge’s exercise of discretion on costs and will only do so where a clear error of principle is established. [60]
- Where a trial judge has considered an issue-based costs order but determines that a percentage-based approach is more appropriate to reflect the overall outcome of the litigation, this is a proper exercise of their discretion. [59, 61]
- There is no presumption in favour of the summary assessment of costs at the conclusion of a multi-day trial, and parties cannot be expected to have produced Statements of Costs for such an assessment in the absence of a specific direction. [58]
- A trial judge, having presided over the proceedings and witnessed how the various issues were litigated, is in the best position to assess the parties’ overall success and conduct for the purpose of making a costs order. [60, 61]
- The fact that a party was successful on specific issues does not, in itself, demonstrate that a trial judge gave insufficient weight to those successes when making a global costs order reflecting the mixed outcome of the case. [61]
