A money judgment in the claimant’s favour did not make it the “successful party” for costs purposes. Where the recovery represented less than 5% of the claim and the commercially significant claims failed entirely, the court ordered each party to bear its own costs.
The ‘paying party’ test is a highly relevant but not decisive indicator of which party is the ‘successful party’ for costs purposes; the court must undertake a fact-specific evaluation of the litigation as a whole to determine who, as a matter of substance and reality, has won.
Where a claimant recovers only a very small fraction of the total sums claimed, and the commercially significant part of the claim fails entirely, this may justify a finding that neither party was the overall winner, leading to a departure from the general rule on costs.
In determining the appropriate costs order, the court may take into account as a matter of conduct a party’s maintenance of weak alternative claims up to trial, which should have been abandoned earlier and which increased the other party’s costs of preparation.
The conduct of a party or its controlling mind in related litigation, where such conduct is fundamentally inconsistent with the case advanced in the present proceedings and undermines the credibility of its evidence, is a relevant factor the court may consider when exercising its discretion on costs.
The proportionality of the costs incurred relative to the sum recovered, and the likelihood that a more limited claim would have been conducted in a less costly manner, are relevant considerations when deciding the just order for costs.
